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UNIVERSITY  OF  ILLINOIS  STUDIES 

IN  THE 
SOCIAL   SCIENCES 

VOL.  IX  MARCH-JUNE,  1920  Nos.  1  and  2 


BOARD  OP  EDITORS  : 

ERNEST  L.  BOGART  JOHN  A.  FAIRLIE 

ALBERT  H.  LYBYER 


PUBLISHED  BY  THE  UNIVERSITY  OP  ILLINOIS 

UNDER  THE  AUSPICES  OF  THE  GRADUATE  SCHOOL 

URBANA,  ILLINOIS 


COPYRIGHT,  1921 
BY  THE  UNIVERSITY  OF  ILLINOIS 


C£S--txOfc"TA/U-eo 


War  Powers  of  the  Executive 
in  the  United  States 


BY 

CLARENCE  A.  BERDAHL,  PH.  D. 

Instructor  in  Political  Science 
University  of  Illinois 


-1104 


CONTENTS 

PAGE 

PREFACE    7 

CHAPTER  I.  INTRODUCTION 11 

General   conceptions   of   executive   power 11 

General  conceptions  of  the  war  powers 15 

Source   of  the   President 's  war  powers 20 

Forms   of  presidential   action 20 

Delegation  of  presidential  powers 21 

I.  POWERS  RELATING  TO  THE  BEGINNING  OF  WAR 

CHAPTER  II.  CONTROL  OP  FOREIGN  RELATIONS 25 

Initiation  and  formulation  of  foreign  policy 26 

Power  of  recognition  31 

Power  to  sever  diplomatic  relations  35 

Executive  agreements  37 

CHAPTER  III.  MILITARY  MEASURES  SHORT  OF  WAR 43 

Employment  of  armed  forces  in  aid  of  the  civil  power 43 

Protection  of  ' '  inchoate ' '  interests  of  the  United  States 45 

Protection  of  American  rights  and  interests  abroad 49 

Intervention  and  police  supervision 53 

CHAPTER  IV.  POWER  OF  DEFENSE 58 

Power  to  begin  a  ' '  defensive ' '  war 58 

Defense  against  attack  or  invasion 62 

Punitive  expeditions  65 

Arming  of  merchant  vessels .  67 

Recognition  of  ' ' existing"  state  of  war 70 

CHAPTER  V.  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR 78 

Debates  in  Convention  of  1787 78 

Importance  of  power  of  recommendation 80 

Declaration  of  causes  and  purposes 94 

Power  of  veto  95 

Notification  of  state  of  war 96 

II.  MILITARY  POWERS  IN  TIME  OF  WAR 

CHAPTER  VI.    POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  . . .  101 

Nature  of  the  President 's  power 101 

Powers  under  voluntary  enlistment 101 

Powers  under  conscription    105 

Exercise  of  power  without  authority 108 

Powers  with  regard  to  organization Ill 

CHAPTER  VII.     POWERS  OF  COMMAND 115 

Nature  of  powers  as  commander-in-chief 115 

Power  of  personal  command 118 

General  direction  of  military  operations 121 


Appointment  and  dismissal  of  officers * 126 

Powers  with  regard  to  the  militia 130 

CHAPTER  VIII.  POWERS  OF  MILITARY  JURISDICTION 138 

Courts-martial  138 

Military  commissions  143 

Power  of  pardon  148 

CHAPTER  IX.  POWERS  OF  MILITARY  GOVERNMENT 152 

Definition  and  authority  to  establish 152 

Power  to  determine  its  character 154 

Functions  under  military  government 157 

III.  CIVIL  POWEES  IN  TIME  OF  WAS 

CHAPTER  X.    CONTROL  OF  ADMINISTRATION 167 

Military  administrative  agencies 167 

Special   war   administrative    services 170 

Proposals  for  coordination 172 

Overman  Act   * 174 

CHAPTER  XI.    POWERS  OF  POLICE  CONTROL 182 

The  war  power  and  the  Bill  of  Eights 182 

Police  control  of  aliens 184 

Suspension  of  the  writ  of  habeas  corpus 188 

Power   of   censorship 192 

CHAPTER  XII.    POWERS  OF  ECONOMIC  CONTROL 203 

Control  of  food  and  fuel 204 

Control  of  trade  and  industry 208 

Control  of  private  property 212 

Control  of  transportation  and  communication 214 

IV.    POWEES  EELATING  TO  THE  TEEMINATION  OF  WAE 

CHAPTER  XIII.  POWER  OF  TERMINATING  WAR  IN  THE  UNITED  STATES  223 

Methods  of  terminating  war 223 

Eecent  opinions  and  actions  in  the  United  States 224 

Debates  in  Convention  of  1787 228 

Official  declarations  by  Congress  k:30 

CHAPTER  XIV.  POWERS  WITH  EEGARD  TO  A  TREATY  OF  PEACE 232 

Armistice  and  preliminary  protocol  232 

Appointment  of  peace  commissioners 237 

Control  of  peace  negotiations 242 

Final  ratification  246 

CHAPTER  XV.  POWERS  WITH  EEGARD  TO  EECONSTRUCTION 250 

Eesumption  of  diplomatic  relations 251 

Government  of  acquired  territory 252 

Powers  under  recent  war  legislation 262 

CHAPTER  XVI.  CONCLUSION 265 

BIBLIOGRAPHY  271 

TABLE  OF  CASES 283 

INDEX 285 


PREFACE 

The  powers  of  the  Executive  relating  to  war  have  received 
surprisingly  little  attention  in  treatises  and  commentaries  on 
the  Constitution.  They  are  usually  passed  by  with  little  more 
than  a  repetition  of  the  constitutional  provision  making  the 
President  the  Commander-in-Chief  of  the  armed  forces  of  the 
nation.  This  study  is  an  attempt  to  describe  these  war  powers 
more  fully  and  systematically  than  has  heretofore  been  done. 
For  this  purpose,  the  term  "war  powers"  has  been  interpreted 
somewhat  liberally,  so  as  to  include  not  only  the  powers  that 
may  be  exercised  during  the  actual  conduct  of  war,  but  also 
those  that  relate  to  the  initiation  and  termination  of  war  and  to 
the  reconstruction  period  following  war.  It  has  been  necessary, 
in  great  measure,  to  work  over  old  material  and  to  make  use  of 
familiar  historical  incidents.  Nevertheless,  it  is  hoped  that 
something  has  been  contributed  to  show  more  clearly  the  com- 
prehensive scope  and  the  almost  unlimited  nature  of  this  phase 
of  the  President's  power. 

The  writer  is  indebted  to  members  of  the  Political  Science 
Seminar  of  the  University  of  Illinois,  and  more  especially  to 
Professors  Garner  and  Fairlie,  for  valuable  suggestions  and 
kindly  criticism.  He  is  alone  responsible  for  any  errors  of  fact 
or  conclusion. 

UNIVERSITY  OF  ILLINOIS 


"It  is  difficult  to  describe  any  single  part  of  a 
great  governmental  system  without  describing  the 
whole  of  it.  Governments  are  living  things  and 
operate  as  organic  wholes." 

— Woodrow  Wilson. 
Constitutional  Government 
in  the  United  States 


CHAPTER  I 

INTRODUCTION 

"The  executive  power  shall  be  vested  in  a  President  of  the 
United  States  of  America."1  The  language  here  used  by  the 
Constitution  in  describing  the  executive  power  in  the  govern- 
ment of  the  United  States  is  strikingly  different  from  that 
describing  the  general  power  of  either  of  the  other  two  great  de- 
partments. The  article  dealing  with  the  legislative  department 
uses  the  words,  ' '  All  legislative  powers  herein  granted  .  .  "2 
showing  that  the  following  specified  powers  clearly  constitute  a 
limitation  on  the  possible  claims  of  that  department  to  power; 
while  the  article  devoted  to  the  judiciary  also  expressly  states 
that  the  judicial  power  of  the  United  States  "shall  extend  to" 
certain  enumerated  cases,3  thereby  obviously  excluding  all  other 
cases  over  which  the  judiciary  might  otherwise  claim  jurisdiction. 

The  lack  of  such  express  limitations  in  the  article  dealing  with 
the  Executive  has  led  to  some  difference  of  opinion  as  to  whether 
the  executive  power  vested  in  the  President  by  the  Constitution 
is  defined  and  limited  by  the  following  specified  powers,  or 
whether  it  includes  other  powers  not  enumerated  but  naturally 
executive  in  character.  Even  if  the  former  interpretation  of  the 
Constitution  is  accepted  as  correct,  the  conception  of  the  term 
"executive  power"  still  remains  somewhat  vague,  since  several 
of  the  expressly  enumerated  powers  of  the  President,  such  as  his 
powers  as  Commander-in-Chief  and  his  power  to  see  that  the 
laws  are  executed,  are  in  themselves  undefined 'in  the  Constitu- 
tion, uncertain  as  to  their  limits,  and  therefore  subject  to  va- 
rious interpretations. 

1  Constitution,  Art.  II,  Sec.  1. 

2  Ibid.,  Art.  I,  Sec.  1. 

s  Ibid.,  Art.  Ill,  Sec.  2. 

11 


12  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  J12 

The  article  dealing  with  the  Executive  has  therefore  been  char- 
acterized as  "the  most  defective  part  of  the  Constitution,"  its 
loose  and  general  expressions  enabling  the  President,  by  impli- 
cation and  construction,  "either  to  neglect  his  duties  or  to  en- 
large his  powers. "  *  A  distinguished  historian  says  that  while 
our  Constitution  in  the  main  is  of  the  rigid  type,  its  flexible  char- 
acter is  shown  in  the  provisions  conferring  the  powers  and  de- 
fining the  duties  of  the  Executive.  "Everything  is  clearly  stat- 
ed, but  the  statements  do  not  go  beyond  the  elementary. ' '  Point- 
ing out  that  while  the  Constitution  did  not  authorize  certain 
of  Lincoln's  acts,  neither  did  it  expressly  forbid  them,  he  holds 
that  there  is  ' '  room  for  inference,  a  chance  for  development,  and 
an  opportunity  for  a  strong  man  to  imprint  his  character  upon 
the  office. ' ' 5  Somewhat  the  same  idea  was  expressed  by  Presi- 
dent Wilson  some  years  ago  when  he  wrote:  "The  President 
is  at  liberty,  both  in  law  and  conscience,  to  be  as  big  a  man  as 
he  can.  His  capacity  will  set  the  limit. ' ' 6 

A  doctrine  of  constitutional  construction  —  the  so-called  Wil- 
son-Eoosevelt  doctrine  with  regard  to  the  control  of  matters 
within  the  "twilight  zone"  between  the  national  and  state  jur- 
isdictions7—  was  translated  by  President  Roosevelt  into  terms 
of  inherent  executive  power.  He  said:  "The  most  important 
factor  in  getting  the  right  spirit  in  my  Administration,  next 
to  insistence  upon  courage,  honesty,  and  a  genuine  democracy 
of  desire  to  serve  the  plain  people,  was  my  insistence  upon  the 
theory  that  the  executive  power  was  limited  only  by  specific 
restrictions  and  prohibitions  appearing  in  the  Constitution  or 
imposed  by  Congress  under  its  constitutional  powers.  My  view 

*  View  of   Secretary  of  State   Upshur.     See  his  more   extended   state- 
ment, quoted  in  Taft,  Our  Chief  Magistrate  and  His  Powers,  141. 

e  Rhodes,  Historical  Essays,  204,  214. 

6  Constitutional  Government  in  the  United  States,  70. 

*  First   enunciated   by   James   Wilson   in    1785,    recently   advocated   by 
President  Roosevelt,  and  stated   as  follows:    "That  when   a   subject  has 
been  neither  expressly  excluded  from  the  regulating  power  of  the  Feder- 
al  Government,  nor  expressly  placed  within  the  exclusive  control  of  the 
States,  it  may  be  regulated  by  Congress  if  it  be,  or  become,  a  matter  the 
regulation  of  which  is  of  general  importance  to  the  whole  nation,  and  at 
the  same  time  a  matter  over  which  the  States  are,  in  practical  fact,  unable  to 
exercise  the  necessary  controlling  power. ' '  Willoughby,  Constitutional  Law, 
I.  47. 


13]  INTRODUCTION  13 

was  that  every  executive  officer  in  high  position  was  a  steward 
of  the  people  bound  actively  and  affirmatively  to  do  all  he 
could  for  the  people,  and  not  to  content  himself  with  the  nega- 
tive merit  of  keeping  his  talents  undamaged  in  a  napkin.  I 
declined  to  adopt  the  view  that  what  was  imperatively  necessary 
for  the  Nation  could  not  be  done  by  the  President  unless  he 
could  find  some  specific  authorization  to  do  it.  My  belief  was 
that  it  was  not  only  his  right  but  his  duty  to  do  anything  that 
the  needs  of  the  Nation  demanded  unless  such  action  was  for- 
bidden by  the  Constitution  or  by  the  laws.  Under  this  inter- 
pretation I  did  and  caused  to  be  done  many  things  not  pre- 
viously done  by  the  President  and  the  heads  of  the  departments. 
I  did  not  usurp  power  but  did  greatly  broaden  the  use  of  execu- 
tive power.  In  other  words,  I  acted  for  the  public  welfare,  I 
acted  for  the  common  well  being  of  all  our  people,  whenever 
and  in  whatever  measure  was  necessary,  unless  prevented  by 
direct  constitutional  or  legislative  prohibition. ' ' 8 

Roosevelt's  theory  of  executive  power  is  disputed,  however, 
by  equally  eminent  authority.  Senator  Rayner,  one  of  the 
leading  constitutional  lawyers  of  his  time,  contended  that  the 
clause  dealing  with  the  executive  power  relates  simply  to  the 
distribution  of  governmental  functions,  and  should  not  be  con- 
sidered as  a  grant  of  power  at  all.9  Professor  Goodnow  says  that 
the  holder  of  executive  power  "is  for  the  most  part  to  exercise 
the  powers  which  have  clearly  been  given  to  him  by  the  Con- 
stitution, and  the  Constitution  itself  is  regarded  as  a  grant  of 
power  not  otherwise  possessed,  rather  than  as  a  limitation  of 
power  already  in  existence. ' ' 10 

The  Supreme  Court  has  likewise  not  only  repudiated  the 
Wilson-Roosevelt  doctrine  of  constitutional  construction  as  being 
contrary  to  the  10th  Amendment,11  but  it  has  also  definitely  re- 
futed the  Roosevelt  theory  of  executive  power.  "We  have  no 
officers  in  this  government,"  says  the  Court,  "from  the  Presi- 

8  Roosevelt,  Autobiography,  388-389. 

a  Speech  in  U.  S.  Senate,  Jan.  31,  1907.  Cong.  Record,  XLI,  Pt.  II 
(59  Cong.,  2  Sess.)',  2010. 

10  Principles  of  Constitutional  Government,  89. 

11  Kansas  v.  Colorado,  206  U.  S.,  46,  89-90   (1907).     The  10th  Amend- 
ment reads  as  follows:   "The  powers  not  delegated  to  the  United  States 
by  the  Constitution,  nor  prohibited  by  it  to  the  States,  are  reserved  to  the 
States   respectively,   or   to  the   people. ' ' 


14  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [14 

dent  down  to  the  most  subordinate  agent,  who  does  not  hold 
office  under  the  law,  with  prescribed  duties  and  limited  author- 
ity." 12  It  would  therefore  seem  that  ex-President  Taft  reflect- 
ed the  better  opinion  when  he  stated  the  true  view  of  executive 
power  to  be  "that  the  President  can  exercise  no  power  which 
cannot  be  fairly  and  reasonably  traced  to  some  specific  grant  of 
power  or  justly  implied  and  included  within  such  express  grant 
as  proper  and  necessary  to  its  exercise.  Such  specific  grant  must 
be  either  in  the  Federal  Constitution  or  in  an  Act  of  Congress 
passed  in  pursuance  thereof.  There  is  no  undefined  residuum 
of  power  which  he  can  exercise  because  it  seems  to  him  to  be 
in  the  public  interest  ....  The  grants  of  Executive  pow- 
er are  necessarily  in  general  terms  in  order  not  to  embarrass  the 
Executive  within  the  field  of  action  plainly  marked  for  him, 
but  his  jurisdiction  must  be  justified  and  vindicated  by  affir- 
mative constitutional  or  statutory  provisions  or  it  does  not 
exist."13 

Altho  the  weight  of  authority  upholds  the  contention  that 
executive  power  in  the  United  States  is  limited  definitely  to  the 
powers  enumerated  in  the  Constitution,  or  clearly  implied  there- 
from, the  interpretation  of  those  enumerated  powers  is  frequent- 
ly such  as  to  give  to  the  President  an  extraordinary  and  prac- 
tically undefined  range  of  authority.  Thus,  for  example,  it 
has  been  authoritatively  held  that  the  President,  under  his  pow- 
er "to  take  care  that  the  laws  be  faithfully  executed,"  may  un- 
dertake measures  and  exercise  authority,  for  the  enforcement 
of  the  law  or  the  protection  of  federal  rights,  not  specifically 
granted  by  Constitution  or  statute.14  Other  of  the  President's 
enumerated  powers,  such  as  his  power  as  Commander-in- Chief 

12  The  Floyd  Acceptances,  7  Wall.,  666,  676  (1868). 

is  Our  Chief  Magistrate  and  His  Powers,  139-140. 

i*/n,  re  Neagle,  135  U.  8.,  1,  63-64,  67  (1890).  Cf.  dissenting  opinion, 
which  held  that  such  enforcement  or  protection  "must  proceed  not  from 
the  President,  but  primarily  from  Congress,"  and  that  if  Congress  does 
not  pass  laws  in  reference  to  such  matters,  "there  is  not  the  slight- 
est legal  necessity  out  of  which  to  imply  any  such  power  in  the  Presi- 
dent." Ibid.,  82,  83.  See  also  view  of  W.  W.  Willoughby:  "The  obli- 
gation to  take  care  that  the  laws  of  the  United  States  are  faithfully  exe- 
cuted, is  an  obligation  which  is  to  be  fulfilled  by  the  exercise  of  those 
powers  which  the  Constitution  and  Congress  have  seen  fit  to  confer." 
Constitutional  Law,  II,  1151. 


15]  INTRODUCTION  15 

and  his  power  to  receive  and  send  ambassadors  and  ministers, 
are  likewise  subject  to  the  same  broad  interpretation. 

If  the  general  conception  of  executive  power  in  the  United 
States  is  somewhat  vague  and  open  to  various  interpretations, 
that  is  especially  true  of  the  nature  and  extent  of  executive 
power  with  regard  to  war.  It  has  rightly  been  said  that  "the 
domain  of  the  executive  power  in  time  of  war  constitutes  a  sort 
of  'dark  continent'  in  our  jurisprudence,  the  boundaries  of  which 
are  undetermined. ' ' 15 

From  the  very  beginning  of  our  history  as  a  nation,  states- 
men and  commentators  have  held  that  since  it  is  impossible  to 
foresee  what  may  be  the  exigencies  or  circumstances  endanger- 
ing the  public  safety,  therefore  "no  constitutional  shackles  can 
wisely  be  imposed,"  and  none  are  imposed  upon  the  so-called 
war  powers.16  They  have  held  that  there  are  two  distinct  classes 
of  powers  under  the  Constitution  —  the  peace  powers,  which  are 
subject  to  the  restrictions  of  the  Constitution,  and  the  war  pow- 
ers, which  are  limited  only  by  the  laws  and  usages  of  nations,17 

15  J.  W.  Garner,  in  Eevue  du  Droit  Public  et  de  la  Science  Politique, 
XXXV,  13   (Jan.-Mar.,  1918). 

16  See   argument   of   Hamilton,    in      The   Federalist,   No.    23    (Goldwin 
Smith  ed.,  pp.  119-120).     Cf.  Speech  of  Senator  Sumner,  in  U.  8.  Senate, 
June  27,  1862 :   ' '  Pray,  Sir,  where  in  the  Constitution  is  any  limitation  of 
the  War  Powers?     Let  Senators  who  would  limit  them  mention  a  single 
section,  line,  or  phrase,  which  even  hints  at  any  limitation.    .    .    .  The  War 
Powers  are  derived  from  the  Constitution,  but,  when  once  set  in  motion, 
are  without  any  restraint  from  the  Constitution;    so  that  what  is   done 
in  pursuance  of  them  is  at  the  same  time  under  the  Constitution  and  out- 
side the  Constitution.     It  is  under  the  Constitution  in  the  latitude  with 
which  it  is  conducted;  but,  whether  under  the  Constitution  or  outside  the 
Constitution,  all  that  is  done  in  pursuance  of  the  War  Powers  is  consti- 
tutional. ' '    Works  of  Charles  Sumner,  VII,  131-132.    See  also  Fisher,  Trial 
of  the  Constitution,  199. 

"  ' '  There  are,  then,  in  the  authority  of  Congress  and  of  the  Execu- 
tive, two  classes  of  powers,  altogether  different  in  their  nature  and  often 
incompatible  with  each  other  —  the  war  power  and  the  peace  power.  The 
peace  power  is  limited  by  regulations  and  restricted  by  provisions  pre- 
scribed within  the  Constitution  itself.  The  war  power  is  limited  only 
by  the  laws  and  usages  of  nations.  This  power  is  tremendous;  it  is  strict- 
ly constitutional,  but  it  breaks  down  every  barrier1  so  anxiously  erected 
for  the  protection  of  liberty,  of  property  and  of  life.  .  .  The  powers  of 
war  are  all  regulated  by  the  laws  of  nations,  and  are  subject  to  no  other 
limitations. ' '  Speech  of  John  Quincy  Adams,  in  House  of  Representatives, 
May  25,  1836.  Cong.  Debates,  XII,  Pt.  IV  (24  Cong.,  1  Sess.),  4038,  4039. 


16  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [16 

and  under  which  the  rights  of  peace  may  even  be  disregarded 
or  curtailed.18  They  have  asserted  that  the  war  power  implies 
the  right  to  do  anything  that  may  seem  necessary  to  carry  on 
the  war  successfully,  even  to  the  extent  of  performing  otherwise 
unconstitutional  acts.19 

These  claims  with  regard  to  the  extent  of  the  war  power  have 
also  been  sanctioned  by  the  Supreme  Court.  Thus,  in  uphold- 
ing the  Confiscation  Acts  of  the  Civil  War,  the  Court  said :  ' '  If 
the  statutes  were  not  enacted  under  the  municipal  power  of  Con- 
gress to  legislate  for  the  punishment  of  crimes  against  the  sov- 
ereignty of  the  United  States;  if,  on  the  contrary,  they  are  an 
exercise  of  the  war  powers  of  the  government,  it  is  clear  they 
are  not  affected  by  the  restrictions  imposed  by  the  5th  and  6th 
Amendments.  ...  Of  course  the  power  to  declare  war 

is  ' '  But  in  bestowing  upon  the  Government  War  Powers  without  limi- 
tation, they  [the  makers  of  the  Constitution]  embodied  in  the  Con- 
stitution all  the  Eights  of  War  as  completely  as  if  those  rights  had  been 
severally  set  down  and  enumerated;  and  among  the  first  of  these  is  the 
right  to  disregard  the  Eights  of  Peace."  Works  of  Charles  Sumner, 
VII,  136-137. 

"It  seems  to  be  pretty  well  settled  by  the  common  sense  of  mankind 
that  when  a  nation  is  fighting  for  its  existence  it  cannot  be  fettered  by  all 
the  legal  technicalities  which  obtain  in  time  of  peace."  Ehodes,  Histor- 
ical Essays,  214. 

"What  is  the  effect  of  our  entering  upon  the  war?  The  effect  is  that 
we  have  surrendered  and  are  obliged  to  surrender  a  great  measure  of  that 
liberty  which  you  and  I  have  been  asserting  in  court  during  all  our  lives; 
power  over  property,  power  over  persons.  This  has  to  be  vested  in  a 
military  commander  in  order  to  carry  on  war  successfully."  Speech  of 
Elihu  Eoot  at  Saratoga  Springs,  Sept.,  1917,  quoted  in  Va.  Law  Rev., 
V,  179. 

19  <  <  When  the  Constitution  conferred  upon  Congress  the  right  to 
declare  war,  it  by  necessary  implication  conferred  upon  Congress  the 
right  to  do  anything  that  in  its  judgment  is  necessary  to  carry  that  war 
to  a  successful  conclusion."  Senator  P.  C.  Knox,  in  U.  S.  Senate,  May 
29,  1917.  Cong.  Eeoord,  65  Cong.,  1  Seas.,  3276. 

"I  felt  that  measures  otherwise  unconstitutional  might  become  law- 
ful by  becoming  indispensable  to  the  preservation  of  the  Constitution 
through  the  preservation  of  the  nation."  Letter  of  Lincoln  to  A.  G. 
Hodges,  Apr.  4,  1864.  Nicolay  &  Hay,  Complete  WorTcs  of  Abraham 
Lincoln,  II,  508. 

"If  the  Union  and  the  Government  cannot  be  saved  out  of  this  terrible 
shock  of  war  constitutionally,  a  Union  and  a  Government  must  be  saved  un- 
constitutionally. ' '  Fisher,  Trial  of  the  Constitution,  199. 


17]  INTRODUCTION  17 

involves  the  power  to  prosecute  it  by  all  means  and  in  any  man- 
ner in  which  war  may  be  legitimately  prosecuted. ' ' 20  Even  the 
dissenting  justices  in  this  case  admitted  that  legislation  found- 
ed upon  the  war  power  is  subject  to  quite  different  considera- 
tions from  that  based  upon  the  municipal  power  of  the  govern- 
ment, and  "is  subject  to  no  limitations,  except  such  as  are  im- 
posed by  the  law  of  nations  in  the  conduct  of  war  .  .  .  The 
war  powers  of  the  government  have  no  express  limitations  in 
the  Constitution,  and  the  only  limitation  to  which  their  exercise 
is  subject  is  the  law  of  nations. ' ' 21  The  same  principle  has  also 
been  upheld  by  the  Court  in  other  cases.22 

Tho  authorities  thus  seem  to  agree  regarding  the  nature 
and  unlimited  extent  of  the  "war  powers"  as  such,  the  extent 
to  which  the  exercise  of  these  war  powers  is  vested  in  the  Presi- 
dent or  in  Congress  is  a  matter  of  some  dispute.  For  example, 
Senator  Browning,  during  the  Civil  War,  asserted  the  complete 
authority  of  the  Executive  in  determining  upon  the  measures 
necessary  to  meet  any  war  emergency,  denying  that  Congress 
had  even  coordinate  power  with  the  President  in  that  respect. 
"It  is  not  true,"  he  said,  "that  Congress  may  decide  upon  the 
measures  demanded  by  military  necessities  and  order  them  to 
be  enforced.  .  .  These  necessities  can  be  determined  only  by 
the  military  commander,  and  to  him  the  Constitution  has  in- 
trusted the  prerogative  of  judging  of  them.  When  the  Constitu- 
tion made  the  President  '  Commander-in-Chief  of  the  Army  and 
Navy  of  the  United  States,'  it  clothed  him  with  the  incidental 
powers  necessary  to  a  full,  faithful  and  sufficient  performance 
of  the  duties  of  that  high  office ;  and  to  decide  what  are  military 
necessities,  and  to  devise  and  execute  the  requisite  measures  to 
meet  them,  is  one  of  these  incidents.  It  is  not  a  legislative,  but 
an  executive  function,  and  Congress  has  nothing  to  do  with  it. ' ' 23 

On  the  other  hand,  Senator  Sumner  disputed  this  claim  to 
executive  power,  and  held  that  the  exercise  of  the  war  powers 

*o  Hitter  v.  United  States,  11  Wall.,  268,  304-305  (1870). 

21  Ibid.,  315. 

22  Stewart  v.  Kahn,   11  Wall.,  493,   506-507     (1870);     Mechanics    and 
Traders  Bank  v.  Union  Bank,  22  Wall.,  276,  295   (1874);  McCormick  et 
al.  v.  Humphrey,  27  Ind.,  144,  154  (1866). 

23  Speech  in  U.  8.  Senate,  June  25,  1862.    Cong.  Globe,  37  Cong.,  2  Seas., 
2919,  2920,   2922. 


18  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [18 

rested  with  Congress.  "Of  the  pretension  that  all  these  enor- 
mous powers  belong  to  the  President,  and  not  to  Congress,  I 
try  to  speak  calmly  and  within  bounds.  I  mean  always  to  be 
parliamentary.  But  a  pretension  so  irrational  and  unconstitu- 
tional ;  so  absurd  and  tyrannical,  is  not  entitled  to  respect.  Such 
a  pretension  would  change  the  National  Government  from  a 
government  of  law  to  that  of  a  military  dictator  .  .  . "  24 

As  a  matter  of  fact,  the  growth  of  executive  power  into  a 
practical  dictatorship  in  time  of  war,  does  not  seem  to  have  been 
especially  feared  in  this  country.  During  the  Eevolution,  at- 
tempts were  made,  both  in  New  York  and  Virginia,  to  create  a 
dictator,  who  in  the  latter  state  was  to  be  "invested  with  every 
power  legislative,  executive,  and  judiciary,  civil  and  military, 
of  life  and  death  over  our  persons  and  over  our  properties, ' ' 25 
a  proposal  apparently  approved  by  such  a  democrat  as  Patrick 
Henry.26  Washington  was  actually  given  the  power  of  a  dictator 
on  three  separate  occasions;27  while  Lincoln  has  been  referred 
to  by  impartial  writers  as  exercising  ' '  more  arbitrary  power  than 
any  Englishman  since  Oliver  Cromwell,"  and  as  one  whose  acts 
were  "worthy  of  a  Tudor. ' ' 28  During  the  recent  World  War,  the 
necessity  of  making  the  President  the  supreme  dictator  in  order 
to  win  the  war  was  seriously  suggested  in  Congress.29 

z*  Speech  in  U.  S.  Senate,  June  27,  1862.  Worts  of  Charl&s  Sumner, 
VII,  139-140.  But  of.  Sumner 's  remarks  in  a  speech  at  Boston,  only  a 
few  months  later  (Oct.  6):  "In  war  there  is  no  constitutional  limit  to 
the  activity  of  the  executive,  except  the  emergency.  The  safety  of  the 
people  is  the  highest  law.  There  is  no  blow  the  President  can  strike; 
there  is  nothing  he  can  do  against  the>  Rebellion,  that  is  not  constitution- 
al. Only  inaction  can  be  unconstitutional."  Ibid.,  217. 

25  Elliot 's  Debates,  II,  357-361;     Writings  of  Thomas  Jefferson,  III, 
231. 

26  It   was,   however,   bitterly   opposed   by   Jefferson.     Elliot's  Debates, 
III,  160;  Writings  of  TJwmas  Jefferson,  III,  231. 

27  See  resolves  of  Dee.  27,  1776,  Sept.  17  and  Nov.  14,  1777.    Jour.  Cont. 
Cong.,   VI,   1045-1046;    VIII,    752;    IX,   905.     See   also   Elliot's  Debates, 
III,  79. 

28  Rhodes,  Historical  Essays,  213;   cf.  Bryce,  American  Commonwealth, 
I,  65-66,  72 ;   Ford,  Eise  and  Growth,  of  American  Politics,  280. 

29  Senator    Harding    (Ohio)    made    the    suggestion    in    August,    1917: 
"What  the  United  States  needs  and  what  it  must  have  if  it  is  to  win 
the  war  is  a  supreme  dictator,  with  sole  control  of  and  sole  responsibility 
for  every  phase  of  war  activity,  and  this  today  means  practically  every 
phase  of  Government.     Not  only  does  this  country  need  such  a  dictator, 


19]  INTRODUCTION  19 

That  the  President  can  of  his  own  accord  constitutionally  as- 
sume dictatorial  power  in  time  of  war  has  been  denied  by  the 
courts  as  "an  extravagant  assumption ; " 30  altho  most  au- 
thorities hold  that  the  war  powers  of  the  President  constitute 
a  " latent  power  of  discretionary  action"  capable  of  almost  un- 
limited expansion  in  times  of  emergency  and  making  the  Presi- 
dent practically  absolute  within  a  certain  sphere  of  action.31 

The  exact  limits  of  this  sphere  of  action  for  the  President  and 
the  line  of  demarcation  between  his  war  powers  and  those  of 
Congress,  are  difficult  to  determine.  An  attempt  to  draw  such 
a  line  and  to  delimit  such  a  sphere  of  action  was  made  in  a  fam- 
ous case  in  the  following  language:  "Congress  has  the  power 
not  only  to  raise  and  support  and  govern  armies,  but  to  declare 
war.  It  has,  therefore,  the  power  to  provide  by  law  for  carrying 
on  war.  This  power  necessarily  extends  to  all  legislation  essen- 
tial to  the  prosecution  of  war  with  vigor  and  success,  except 
such  as  interfere  with  the  command  of  the  forces  and  the  conduct 
of  campaigns.  That  power  and  duty  belong  to  the  President  as 
Commander-in-Chief.  Both  these  powers  are  derived  from  the 
Constitution,  but  neither  is  defined  by  that  instrument.  Their 
extent  must  be  determined  by  their  nature  and  by  the  principles 
of  our  institutions.  The  power  to  make  the  necessary  laws  is  in 
Congress;  the  power  to  execute  in  the  President.  Both  powers 
imply  many  subordinate  and  auxilliary  powers.  Each  includes 
all  authorities  essential  to  its  due  exercise.  But  neither  can  the 
President  in  war  more  than  in  peace,  intrude  upon  the  proper 
authority  of  Congress,  nor  Congress  upon  the  proper  authority 
of  the  President.  Both  are  servants  of  the  people,  whose  will 
is  expressed  in  the  fundamental  law. ' ' 32  Other  authorities  have 

in  my  opinion  it  is  sure  to  have  one  before  the  war  goes  much  further. . . 
The  sooner  it  conies  the  better  for  all  of  us.  ...  For  supreme  dictator 
at  the  present  moment  there  is  but  one  possible  man,  the  President  of  the 
United  States."  N.  Y.  Times,  Feb.  10,  1918. 

so  Jones  v.  Seward,  40  Barb.  (N.  Y.),  563,  571  (1863). 

31  Goodnow,  Comparative  Administrative  Law,  I,   32;    Watson,   On  the 
Constitution,    II,    914;    Baldwin,    Modern    Political    Institutions,    91-92; 
Channing,  History  of  the  United  States,  III,  513;  W.  A.  Dunning,  "The 
War  Power  of  the  President,"  New  Republic,  XI,  76-79   (May  19,  1917). 
For  a  somewhat  extravagant  claim  as  to  the  absolute  nature  of  the  Presi- 
dent's war  powers,  see  remarks  of  Senator  Lewis,  in  U.  S.  Senate,  June 
30,  1917.      Cong.  Eecord,  LV,  Pt.  5  (65  Cong.,  1  Sess.),  4552,  4553. 

32  Ex  parte  Milligan,  4  Wall.,  2,  139  (1866). 


20  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [20 

attempted  a  briefer  and  simpler  delimitation  by  saying  that 
"  Congress  regulates  whatever  is  of  general  and  permanent  im- 
portance, while  the  President  determines  all  matters  temporary 
and  not  general  in  their  nature.  '  '  33 

The  main  source  of  the  President's  war  powers  is  of  course 
the  Constitution.  Besides  certain  powers  relating  directly  to 
war  that  are  expressly  conferred  upon  the  President  by  that  in- 
strument,34 other  powers  and  duties  are  vested  in  him  that  may 
have  an  important  bearing  on  the  conduct  of  war;35  while  still 
other  clauses  of  the  Constitution  not  referring  directly  to  the 
President  may  by  necessary  implication  add  to  his  war  powers.36 
Other.  of  the  President's  powers  with  regard  to  war  are  derived 
from  international  law  and  practise,  are  conferred  by  statute, 
or  are  established  as  a  result  of  custom  and  usage.  To  define 
more  clearly  these  war  powers  of  the  President,  to  determine 
their  nature  and  source,  and  to  discover  the  manner  of  their  ex- 
ercise, is  the  purpose  of  this  study. 

The  most  common  forms  through  which  the  President  in  per- 
son exercises  his  powers,  are  by  proclamations  and  executive 
orders,  the  former  generally  containing  announcements  and  de- 
cisions of  the  widest  interest  and  broadest  scope,  the  latter  usual- 
ly concerning  matters  not  of  such  general  interest.  Either  may 
be  issued  as  a  result  of  express  or  implied  statutory  authoriza- 
tion, or  by  virtue  of  the  President's  constitutional  position  as 
Chief  Executive.  The  great  increase  in  the  number  of  these 
proclamations  and  executive  orders  issued  in  war  time  is  also 
an  excellent  indication  of  the  growth  of  the  war  powers  of  the 
Executive  over  his  power  in  time  of  peace. 

Other  forms  of  presidential  action  include  rules  and  regula- 
tions issued  under  statutory  authority  or  by  virtue  of  the  Presi- 
dent 's  constitutional  power;  directions,  instructions,  or  orders 
to  heads  of  departments  and  other  agencies;  and  decisions  on 


lie,  National  Administration  of  the  United  States,  33;  of.  Von 
Hoist,  Constitutional  Law  of  the  United  States,  193. 

s*  Art  II,  Sec.  2,  01.  1  (commander-in-chief). 

as  Art  I,  Sec.  7,  Cl.  2,  3  (sign  and  veto  bills);  Art  II,  Sec.  1,  Cl.  8 
(oath  of  office)  ;  Sec.  2,  01.  1  (power  of  pardon)  ;  Sec.  2,  01.  2  (power 
with  regard  to  foreign  relations  and  appointment  of  officers)  ;  Sec.  3 
(recommend  measures,  call  special  session,  and  execute  the  laws). 

so  Art.  I,  Sec.  9,  01.  2  (habeas  corpus);  Art  IV,  See.  4  (guaranty  of 
republican  government  and  of  protection). 


21]  INTRODUCTION  21 

matters  requiring  his  approval  or  coining  to  him  through  ap- 
peals from  the  decisions  of  subordinate  officials.  Finally,  the 
commissioning  of  officers  appointed  by  him  with  or  without  the 
consent  of  the  Senate,  the  recommendation  of  measures  to  Con- 
gress, and  the  signing  or  vetoing  of  bills,  may  be  included  among 
the  means  through  which  the  President  exercises  his  authority, 
and  which  must  be  considered  in  connection  with  this  study  of 
his  powers.37 

Not  all  of  the  acts  required  of  the  President  can  possibly  be 
performed  by  him  personally,  and  the  courts  have  definitely 
recognized  that  he  may  act  through  the  heads  of  departments. 
' '  The  President  speaks  and  acts  through  the  heads  of  the  several 
departments  in  relation  to  subjects  which  appertain  to  their 
respective  duties,"  and  the  acts  of  the  heads  of  departments  are 
"in  legal  contemplation  the  act  of  the  President."  38 

It  has  also  been  held  that  heads  of  departments  may  in  turn 
act  through  subordinate  officials  in  the  departments;39  but  the 
question  as  to  how  far  this  delegation  of  power  may  be  carried 
and  still  be  considered  the  act  of  the  President  seems  as  yet  to 
be  unsettled  by  the  courts.  It  has  been  pointed  out  that  most 
orders  and  regulations  are  in  fact  prepared  by  subordinate  of- 
ficials in  the  several  departments,  altho  issued  in  the  name 
of  the  head  of  the  department  or  in  the  name  of  the  President; 
and  also  that  in  some  cases,  and  especially  during  the  recent  war, 
such  orders  and  regulations  have  been  issued  by  subordinate  of- 
ficials, acting  by  authority  of  the  head  of  the  department,  in 
matters  where  the  statutes  vested  the  power  in  the  President.40 
This  practise,  undoubtedly  becoming  more  common,  opens  up  a 
vast  new  field  for  a  study  of  the  exercise  of  Presidential  pow- 
ers. Since,  however,  as  has  been  suggested,  it  is  still  an  open 
question  how  far  such  exercise  of  authority  by  subordinate  of- 
ficials can  be  considered  as  the  act  of  the  President,  this  study 
makes  no  attempt  to  include  any  exercise  of  power  but  by  the 
President  himself,  or  for  which  he  may  clearly  be  immediately 
responsible. 

37  Cf.  Fairlie,  National  Administration  of  ihe  United  States,  41-42. 
as  Wilcox  v.  Jackson,  13  Pet,  498,  513  (1839) ;  United  States  v.  Eliason, 
16  Pet.,  291  (1842). 

39  United  States  v.  Warfield,  170  Fed.  Eep.,  43  (1909). 

40  J.  A.  Fairlie,  in  Michigan  Law    Bev.,  XVIII,  188  (Jan.,  1920). 


I.   Powers  Relating  to  the  Beginning  of  War 


CHAPTER  II 

CONTROL  OF  FOREIGN  RELATIONS 

The  function  of  managing  the  foreign  relations  may  be  classi- 
fied into  two  distinct  branches:  (1)  the  power  of  intercourse, 
intercommunication,  and  negotiation;  (2)  the  power  of  entering 
into  formal  or  binding  international  compacts.1  The  latter  pow- 
er is  shared  by  the  President  with  the  Senate,2  but  the  former 
belongs  exclusively  to  the  President.  ' '  The  President  is  the  sole 
organ  of  the  nation  in  its  external  relations,  and  its  sole  repre- 
sentative with  foreign  nations. ' ' 3 

Altho  diplomatic  negotiations  and  intercourse  are  regular- 
ly conducted  through  the  Department  of  State,  the  acts  of  that 
department  are  in  legal  contemplation  the  acts  of  the  President,4 
and,  in  fact,  the  Department  of  State  has  generally  been  recog- 
nized as  having  a  special  status,  as  being  more  directly  sub- 
ject to  the  control  of  the  President  than  any  other  department. 
This  was  clearly  set  forth  by  Senator  John  C.  Spooner  in  a 
speech  before  the  United  States  Senate  on  January  23,  1906, 
when  he  said:  "The  act  creating  the  Department  of  State  in 
1789,  was  an  exception  to  the  acts  creating  the  other  Depart- 
ments of  the  Government.  .  .  .  It  is  a  Department  which 
from  the  begining  the  Senate  has  never  assumed  the  right  to 
direct  or  control,  except  as  to  clearly  defined  matters  relating 
to  duty  imposed  by  statute  and  not  connected  with  the  conduct 
of  our  foreign  relations.  We  direct  all  the  other  heads  of  De- 

1  Pomeroy,  Constitutional  Law   (Bennett's  ed.),  564;    Fairlie,  National 
Administration  of  the  United  States,  29-30. 

2  Constitution,  Art.  II,  Sec.  2,  Cl.  2. 

a  John  Marshall,  in  House  of  Eepresentatives,  Mar.  7,  1800.  Annals  of 
Cong.,  6  Cong.,  613;  cf.  Pomeroy,  op.  cit.,  564;  Corwin,  The  President's 
Control  of  Foreign  Relations,  33. 

*  Jones  v.  United  States,  137  U.  S.,  202,  217  (1890) ;  Crandall,  Treaties: 
Their  Making  and  Enforcement  (2nd  ed.),  93. 

25 


26  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [26 

partments  to  transmit  to  the  Senate  designated  papers  or  in- 
formation. We  do  not  address  directions  to  the  Secretary  of 
State.  We  direct  requests  to  the  real  head  of  that  Department, 
the  President  of  the  United  States,  and,  as  a  matter  of  courtesy, 
we  add  the  qualifying  words,  'if  in  his  judgment  not  incompat- 
ible with  the  public  interest. '  "  5 

This  control  which  the  President  exercises  over  our  foreign 
relations  has,  with  regard  to  his  war  power,  several  principal 
phases.  In  the  first  place,  it  gives  the  President  the  whole  pow- 
er of  initiating  and  formulating  the  foreign  policy  of  the  govern- 
ment, and  virtually  of  committing  the  nation  to  its  execution. 
Jefferson  expressed  this  idea  in  a  letter  to  M.  Genet,  November 
22,  1793:  "He  (the  President)  being  the  only  channel  of  com- 
munication between  this  country  and  foreign  nations,  it  is  from 
him  alone  that  foreign  nations  or  their  agents  are  to  learn  what 
is  or  has  been  the  will  of  the  nation ;  and  whatever  he  communi- 
cates as  such,  they  have  the  right,  and  are  bound  to  consider  as 
the  expression  of  the  nation. ' ' 6  Ex-President  Taf t,  referring 
to  the  President's  power  of  conducting  the  diplomatic  corres- 
pondence, expressed  the  same  thought  in  the  following  words: 
"He  is  bound  in  such  correspondence  to  discuss  the  proper  con- 
struction of  treaties.  He  must  formulate  the  foreign  policies 
of  our  government.  He  must  state  our  attitude  upon  questions 
constantly  arising.  While  strictly  he  may  not  bind  our  govern- 
ment as  a  treaty  would  bind  it,  to  a  definition  of  its  rights,  still 
in  future  discussions  foreign  Secretaries  of  other  countries  are 
wont  to  look  for  support  of  their  contentions  to  the  declarations 
and  admissions  of  our  Secretaries  of  State  in  other  controversies 
as  in  a  sense  binding  upon  us.  There  is  thus  much  practical 
framing  of  our  foreign  policies  in  the  executive  conduct  of  our 
foreign  relations. ' ' 7  President  Wilson  has  put  the  case  for  the 
President  even  more  strongly :  ' '  One  of  the  greatest  of  the  Presi- 
dent's  powers  (is)  .  .  .  his  control,  which  is  very  absolute, 
of  the  foreign  relations  of  the  nation.  The  initiative  in  foreign 
affairs,  which  the  President  possesses  without  any  restriction 
whatever,  is  virtually  the  power  to  control  them  absolutely.  The 

e  Cong.  Record,  59   Cong.,   1   Sess.,   1420;    cf.   Ogg  &  Beard,  National 
Governments  and  the  World  War,  97. 
«  Am.  State  Papers,  For.  Eel.,  I,  184. 
7  Our  Chief  Magistrate  and  His  Powers,  113. 


27]  CONTROL  OP  FOREIGN  RELATIONS  27 

President  cannot  conclude  a  treaty  with  a  foreign  power  without 
the  consent  of  the  Senate,  but  he  may  guide  every  step  of  dip- 
lomacy, and  to  guide  diplomacy  is  to  determine  what  treaties 
must  be  made,  if  the  faith  and  prestige  of  the  government  are 
to  be  maintained.  He  need  disclose  no  step  of  negotiation  until 
it  is  complete,  and  when  in  any  critical  matter  it  is  completed 
the  government  is  virtually  committed.  Whatever  its  disinclina- 
tion, the  Senate  may  feel  itself  committed  also. ' ' 8 

This  power  of  the  President  has  also  been  definitely  upheld  by 
the  Supreme  Court,9  and  there  can  thus  be  no  question  as  to  his 
right  and  power  under  ordinary  circumstances  to  initiate  and 
formulate  such  diplomatic  policies  as  he  may  deem  proper,  and 
virtually  commit  Congress  and  the  country  to  their  execution. 
It  is  also  freely  conceded  by  authorities  that  the  Executive  De- 
partment, by  means  of  this  branch  of  its  power  over  foreign  re- 
lations, "holds  in  its  keeping  the  safety,  welfare  and  even  per- 
manence of  our  internal  and  domestic  institutions. ' ' 10  This 
fact,  that  policies  leading  to  disturbed  relations  with  other  pow- 
ers and  even  endangering  the  peace  and  safety  of  the  country 
may  be,  and  in  fact  have  been,  adopted  at  the  will  of  the  Execu- 
tive, has  led  to  considerable  discussion  as  to  the  propriety  of  en- 
trusting the  sole  responsibility  for  these  matters  to  the  President. 
The  question  has  been  raised  whether,  in  view  of  the  power  of 
Congress  to  declare  war,  the  President  is  under  a  constitutional 
obligation  not  to  formulate  and  prosecute  such  diplomatic  pol- 
icies as  might  incur  the  risk  of  war,  or  whether,  in  case  grave 
consequences  are  feared,  he  should  not  at  least  advise  and  con- 
sult with  Congress. 

The  idea  that  the  President  is  under  some  such  obligation  has 
been  brought  forward  on  several  occasions.  It  was  raised  in 
1826,  when  the  proposal  of  President  Adams  to  send  representa- 
tives to  the  Panama  Congress11  aroused  the  opposition  of  such 
senators  as  Hayne,  Woodbury,  White,  Van  Buren,  and  Benton, 

s  Constitutional  Government,  77-78;  See  also  President  Wilson's  let- 
ter to  Senator  Fall,  Dec.  8,  1919.  Infra,  35-36;  S.  E.  Baldwin,  in  Yale 
Eev.,  IX,  407. 

» Foster  v.  Neilson,  2  Pet.,  253,  309  (1829);  Williams  v.  Suffolk  In- 
surance Company,  13  Pet.,  415,  420  (1839). 

10  Pomeroy,  op.  cit.,  565. 

11  Richardson,  Messages  and  Papers  of  the  Presidents,  II,  318-320. 


28  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [28 

largely  on  the  ground  that  this  Congress  was  to  be  really  a  con- 
gress of  belligerents,  and  that  the  United  States,  by  taking  part, 
would  compromise  its  neutrality,  become  involved  in  ' '  entangling 
alliances,"  and  incur  the  risk  of  war  with  Spain.12  Their  senti- 
ments were  expressed  by  Van  Buren  (later  President),  when  he 
said:  "It  is,  then,  the  design  of  the  Executive  to  enter  into  an 
agreement  at  the  Congress  .  .  .  that  if  the  powers  of  Eur- 
ope make  common  cause  with  Spain,  or  otherwise  attempt  the 
subjugation  of  Spanish  America,  we  shall  unite  with  the  latter, 
and  contribute  our  proportion  to  the  means  necessary  to  make 
the  resistance  effectual;  and  further,  that  we  shall  bind  our- 
selves, at  that  Congress,  as  to  the  manner  in  which  we  shall  re- 
sist any  attempts,  by  the  European  powers,  to  colonize  any  por- 
tion of  this  continent."  Such  a  proposal  he  characterized  as 
"a  measure  by  which  the  the  peace  of  the  country  is  to  be  ex- 
posed to  a  contingency  beyond  the  control  of  our  Government  — 
by  which  the  great  question  of  peace  or  war  will  be  taken  from 
the  Representatives  of  the  people  —  by  which,  instead  of  re- 
taining that  freedom  of  action  which  we  now  possess,  we  shall 
bind  ourselves,  in  a  certain  event,  to  pursue  a  certain  course, 
whatever  those,  to  whom  the  Government  of  the  country  may 
have  been  committed,  shall  think  the  honor  or  interest  of  the 
country  may  require."  13 

In  the  House  of  Representatives  there  was  likewise  consider- 
able opposition  to  the  President's  proposal  on  the  same  grounds. 
Thus  Mr.  Rives  spoke  of  the  result  of  our  participation  in  the 
Congress  as  "most  probably  the  adoption  of  measures  endanger- 
ing the  future  peace  of  the  country, ' '  and  of  the  President 's  dec- 
laration with  regard  to  foreign  interference  in  the  affairs  of 
South  America  as  "a  conditional,  or,  to  use  a  more  diplomatic 
phraseology,  a  provisional  declaration  of  war ; "  14  while  Mr. 
Hamilton  remarked,  "We  have  become,  at  the  exclusive  will 
of  the  President,  the  arbitrator  of  the  New  World,  and,  in  that 
character,  have  sent  bullying  protests  to  the  old.  The  Cabinet 
has,  in  our  name,  made  two  solemn  contracts,  to  go  to  war  in  two 
contingencies,  without,  '  as  a  matter  of  preliminary  advisement, ' 
even  condescending  to  consult  us. "  15  Others  spoke  to  the  same 

izBenton's  Debates,  VIII,  423,  425,  435,  436,  441,  446,  450,  462. 

"/MA,  446-447. 

i*  Ibid.,  IX,  107,  111. 

« Ibid.,  136. 


29]  CONTROL  OF  FOREIGN  RELATIONS  29 

effect,  and  an  attempt  was  even  made  to  instruct  the  envoys  to 
the  Congress  by  attaching  conditions  to  the  resolution  provid- 
ing for  the  mission.16 

These  conditions  were  vigorously  opposed  in  the  House  by 
Webster  and  others  as  an  invasion  of  the  power  of  the  President 
to  instruct  ministers,17  and  were  eventually  voted  down.18  There 
was,  however,  considerable  sentiment  to  the  effect  that  while 
there  was  no  power  in  the  House  to  issue  instructions  either  to 
the  President  or  to  ministers,  still  the  House,  through  its  power 
of  granting  or  refusing  appropriations,  might  exercise  a  re- 
straint upon  foreign  diplomatic  intercourse  —  a  power  which 
should,  however,  be  exercised  only  when  the  policy  of  the  Execu- 
tive was  clearly  tending  to  involve  the  country  in  war.19  Sena- 
tor Johnston  (of  Louisiana)  probably  best  summed  up  the  posi- 
tion of  the  President  and  his  supporters  when  he  said:  "There 
is  nothing  peculiar  in  the  present  case.  The  President  has,  at 
all  times,  the  power  to  commit  the  peace  of  the  country,  and 
involve  us  in  hostilities,  as  far  as  he  has  power  in  this  case.  To 
him  is  confided  all  intercourse  with  foreign  nations.  To  his  dis- 
cretion and  responsibility  is  intrusted  all  our  delicate  and  dif- 
ficult relations:  all  negotiations  and  all  treaties  are  conducted 
and  brought  to  issue  by  him. ' ' 20  Even  Van  Buren,  who  had 
spoken  against  the  mission,  admitted  that,  no  matter  what  ac- 
tion the  Senate  or  Congress  might  take,  the  President  could  still 
constitutionally  provide  for  such  mission  on  his  own  author- 
ity.21 

Whether  or  not  the  Panama  mission  of  1826  actually  carried 
with  it  the  dangers  attributed  to  it  by  its  opponents  may  still 

i«Benton's  Debates,  IX,  91. 

IT  Ibid.,  94-95,  101,  115,  150. 

is  Ibid.,  217,  218. 

i»  See,  for  example,  remarks  of  Mr.  Thompson.     Ibid.,  182. 

20  Ibid.,  VIII,  439. 

21  Ibid.,  441.     ' '  But  though  neither  Congress  nor  the  court  may  direct 
the  President  in  the  discharge  of  his  constitutional  powers,  yet  either  the 
Senate  or  the  House  separately,  or  both  concurrently,  may  pass  resolutions 
expressive    of   their   desires   in    relation    to    questions    of    an    international 
character,    and   the   President   may   give   such    resolutions   any   weight   he 
chooses,  notwithstanding  that  they  have  no  legal  effect.    Indeed,  it  is  a  part 
of  the  President's  discretion  to  pay  heed  to  such  resolutions  or  not,  as  he 
elects."     Corwin,  The  President's  Control  of  Foreign  Eelations,  40. 


30  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [30 

be  a  matter  of  some  dispute,  but  is  of  little  consequence  to  this 
study.  The  important  point  to  be  noted,  on  which  both  advo- 
cates and  opponents  of  the  mission  were  agreed,  is  that,  if  it  was 
within  the  power  of  the  President  alone  to  decide  upon  a  cer- 
tain diplomatic  policy,  such  as  this  mission,  it  was  likewise 
within  his  power,  and  his  alone,  to  determine  whether  or  not  its 
consequences  might  involve  the  peace  and  safety  of  the  country. 
The  President  having  made  his  decision  and  carried  out  his 
policy,  Congress  and  the  country  would  be  committed  to  it,  re- 
gardless of  consequences. 

This  power  of  the  President  has  been  demonstrated  in  actual 
practise  again  and  again.  During  a  period  of  about  twenty-five 
years  (1823-1849),  the  Cuban  policy  of  the  Executive  was  con- 
sistently friendly  to  Spain  and  a  guaranty  of  Spanish  sover- 
eignty; after  the  Mexican  War  that  was  changed  to  a  policy 
whose  chief  end  was  the  acquisition  of  Cuba  by  the  United 
States,  and  in  the  development  of  which  American  diplomacy 
has  been  characterized  as  "aggressive  and  intolerant;"  while 
during  the  period  after  the  Civil  War,  it  was  again  changed  to  a 
policy  of  commercial  and  humanitarian  interest,  culminating 
finally  in  actual  intervention  and  war.22 

President  Grant's  handling  of  the  Virginius  incident  in  1873, 
President  Cleveland's  of  the  Venzuelan  affair  of  1895,  and  Presi- 
dent Wilson's  of  the  Mexican  situation  throughout  the  entire 
course  of  his  administration,  illustrate  the  power  of  the  Presi- 
dent both  to  bring  on  and  to  avert  diplomatic  crises.23  Mention 
need  only  be  made  of  such  events  as  Washington's  neutrality 

22  Benton,    International   Law    and    Diplomacy    of    the    Spanish-Ameri- 
can War,  14-20;    Rhodes,  History  of  the  United  States,  II,  350-354.     See 
message  of  President  Cleveland  to  Congress,  Dee.  7,  1896;  and  President 
McKinley's  statement  of  the  grounds  for  intervention,  in  his  message  of 
Apr.  11,  1898.     Eichardson,  op.  cit.,  IX,  719-721;  X,  147. 

23  Rhodes,    op.    cit.,    VII,    29-36 ;    Chadwick,    Relations    of    the    United 
States  and  Spain:  Diplomacy,  314-357.     "In  an  hour,  by  this  executive  act 
(Cleveland's  action  in  the  Venezuelan  affair),  we  are  brought  face  to  face 
with  a  question  of  war  with  the  leading  power  in  Europe,  and  the  danger 
of  it  passes  away  through  a  diplomatic  correspondence,  for  the  issue  of 
which  the  President  was  again  alone  responsible.     The  very  ground  of  our 
interference  in  this  quarrel  of  Venezuela  —  what  was   it  but  a   doctrine 
proclaimed,  and  indeed  invented,  by  a  President  of  the  United  States?     The 
Monroe  Doctrine  has  laid  down  the  law  for  our  hemisphere,  and  it  was  the 
single  act  of  the  executive   department."   Baldwin,  Modern  Political  In- 
stitutions, 105-106. 


31]  CONTROL  OF  FOREIGN  RELATIONS  31 

policy,  the  Monroe  Doctrine,  the  annexation  of  Texas,  the  Mexi- 
can War,  the  Alabama  Claims  settlement,  the  acquisition  of  the 
Panama  Canal,  the  Big  Stick  doctrine,  our  entrance  into  the 
war  with  Germany  —  "all  these,  and  many  more,"  says  Cor- 
win,  "must  be  set  down  to  the  credit  of  executive  leadership  in 
the  field  of  foreign  relations. ' ' 24 

It  may  therefore  be  asserted  that  the  President,  through  his 
control  of  diplomatic  intercourse,  holds  in  his  keeping  the  peace 
and  safety  of  the  United  States,  that  he  may  initiate  such  dip- 
lomatic policies  and  so  conduct  diplomatic  negotiations  as  to 
force  the  country  into  a  war,  "without  any  possibility  of  hin- 
drance from  Congress  or  the  Senate. ' ' 25 

A  second  phase  of  the  President's  control  of  foreign  relations 
that  should  be  considered  in  this  connection  is  his  power  to  rec- 
ognize the  belligerency  or  independence  of  new  states  and  gov- 
ernments. This  power  of  recognition  is  not  expressly  granted 
by  the  Constitution,  but  is  implied  from  the  general  power  to 
enter  into  diplomatic  relations  with  foreign  countries  through 
the  making  of  treaties  and  the  exchange  of  accredited  envoys.26 
It  is  not  conferred  in  terms  upon  any  one  department  of  the 
government,  but  is  now  generally  conceded  as  belonging  to  the 
Executive.27  In  practise,  recognition  has  always  been  extended 
as  the  exclusive  act  of  the  President.28 

24  The  President 's  Control  of  Foreign  Relations,   126 ;    cf.   Ford,  Rise 
and  Growth  of  American  Politics,  279,  280. 

25  Fairlie,  National  Administration,   30 ;    Pomeroy,   Constitutional  Law, 
565. 

26  Constitution,  Art.  II,  Sec.  2,  Cl.  2 ;  Sec.  3 ;  cf.  Taf t,  Our  Chief  Mag- 
istrate and  His  Powers,  112-113;  Story,  Commentaries  on  tlie  Constitution, 
II,  370-371.     For  a  more  extended  discussion  of  this  question,  see  an  ar- 
ticle by  the  writer,  ' '  The  Power  of  Recognition, ' '  in  Am.  Jour.  Int.  Law, 
XIV,  519-539  (Oct.,  1920). 

27  In  several  cases  the  courts  have  declared  the  power  of  recognition 
to  be  vested  in  the  ' '  political  department ' '  of  the  government,  without 
indicating  clearly  whether  the  executive  or  legislative  department,  or  both, 
was  meant.  Rose  v.  Himely,  4  Cr.,  241  (1801)  ;  Gelston  v.  Hoyt,  3  Wheat., 
246,  324    (1818);   Foster  v.   Neilson,  2   Pet.,  253,   307    (1829);   Jones  v. 
United  States,  137  U.  S.,  202,  212  (1890).     However,  in  other  cases,  both 
the  language  and  tone  of  the  decisions  are  such  as  to  show  that  the  exe- 
cutive department  is  meant.     United  States  v.  Hutchings,  2  Wheeler 's  Crim- 
inal Cases,  543,  cited  in  Sen.  Doc.  No.  56,  54  Cong.,  2  Sess.,  24;  Williams 
v.  Suffolk  Insurance  Company,  13  Pet.,  415,  420  (1839)  ;    Eennett  v.  Cham- 


32  WAR  POWERS  OP  THE  EXECUTIVE  IX  UNITED  STATES  [32 

New  states  generally  come  into  existence  by  breaking  off  from 
an  actually  existing  state,  and  altho  recognition  even  in  such 
cases  is  "  a  normal  act,  quite  compatible  with  the  maintenance  of 
peaceful  intercourse  with  the  mother-country,"  provided  the 
new  community  has  actually  won  its  contest  and  successfully 
maintained  its  independence  and  separate  existence,29  author- 
ities agree  that  premature  recognition  is  a  wrong  done  to  the 
parent  state,  that  it  amounts  to  an  act  of  intervention,  and  may 
properly  be  considered  by  the  parent  state  as  a  cause  for  war.30 
Through  the  exercise  of  this  power  the  President  is  thus  upon 
occasion  enabled  to  determine  the  question  of  peace  or  war  for 
the  United  States. 

l>ers,  14.  How.,  38,  46,  50-51   (1852);   United  States  v.  Trumbull,  48  Fed. 
Eep.,  99,  104  (1891)  ;    The  Stata,  56  Fed.  Eep.,  505,  510  (1893). 

See  also  Senate  Document  No.  56,  54  Cong.,  2  Sess.,  containing  a  report 
of  the  Senate  Committee  on  Foreign  Relations,  presented  to  the  Senate  Jan. 
11,  1897,  in  which,  after  an  exhaustive  investigation  into  the  whole  sub- 
ject of  recognition,  it  was  held  that  the  power  of  recognition  rested  prop- 
erly with  the  President.  In  1864,  the  Mexican  situation  brought  about 
the  passage  of  a  House  resolution  declaring  that  ' '  Congress  has  a  con- 
stitutional right  to  an  authoritative  voice  in  declaring  and  prescribing  the 
foreign  policy  of  the  United  States,  as  well  in  the  recognition  of  foreign 
powers  as  in  other  matters ; ' '  and  in  1896,  a  concurrent  resolution  was 
passed  recognizing  a  state  of  war  in  Cuba  and  offering  the  good  offices  of 
the  United  States  for  the  recognition  of  Cuban  independence.  These  reso- 
lutions were  ignored  by  Presidents  Lincoln  and  Cleveland,  respectively,  on 
the  ground  that  recognition  was  a  matter  for  the  Executive  alone.  Cong. 
Globe,  XXXV,  Pt.  I,  65,  67;  LatanS,  America  as  a  World  Power,  9. 

The  joint  resolution  of  1898  authorizing  intervention  in  Cuba,  declared 
"That  the  people  of  the  island  of  Cuba  are,  and  of  right  ought  to  be, 
free  and  independent ; ' '  but  authorities  hold  that  this  is  a  mere  state- 
ment of  policy  and  not  to  be  regarded  as  a  claim  by  Congress  to  the  pow- 
er of  recognition.  Benton,  International  Laiv  and  Diplomacy  of  the  Span- 
ish-American War,  99;  Corwin,  The  President's  Control  of  Foreign  Eela- 
tions,  80-81. 

Senator  King  (Utah)  proposed  a  Senate  resolution,  May  23,  1919,  for  the 
recognition  of  the  Omsk  government  of  Eussia,  which  seems  to  have  been 
buried  in  committee.  Cong.  Record,  66  Cong.,  1  Sess.  (May  23,  1919),  154. 

28  For  the  manner  in  which  recognition  has  been  extended  to  other 
countries  by  the  United  States,  see  Senate  Document  No.  40,  54  Cong.,  2 
Sess. 

z»  Lawrence,  Principles  of  International  Law  (6th  ed.),  88. 

so  Ibid.;  Hall,  International  Law  (6th  ed.),  83;  Moore's  Digest  of 
International  Law,  I,  73. 


33]  CONTROL  OF  FOREIGN  RELATIONS  33 

The  serious  responsibility  thus  resting  upon  the  President 
has  been  recognized  on  several  occasions.  When  the  South 
American  provinces  were  clamoring  for  recognition  in  1817, 
President  Monroe,  altho  sympathetic  with  their  aspirations, 
evidently  feared  possible  complications  with  Spain,31  and  in 
spite  of  pressure  from  Clay  and  his  following  in  Congress,32  de- 
clined to  recognize  these  new  states  until  he  was  satisfied  that 
Spain  would  not  resent  the  act  with  war.33 

President  Jackson,  curiously  enough,  was  likewise  extremely 
cautious  about  arousing  the  hostility  of  Mexico  through  a  pre- 
mature recognition  of  Texas,  declined  to  receive  the  Texan  com- 
missioners sent  to  Washington  in  March,  1836,  to  ask  for  rec- 
ognition,34 and  apparently  was  unwilling  to  take  the  sole  re- 
sponsibility in  cases  involving  possible  international  complica- 
tions. Eeferring  to  the  Texas  situation  in  his  message  of  De- 
cember 21,  1836,  he  spoke  of  the  acknowledgment  of  a  new  state 
as  independent  as  "at  all  times  an  act  of  great  delicacy  and  re- 
sponsibility, but  more  especially  so  when  such  state  has  forcibly 
separated  from  another  of  which  it  had  formed  an  integral  part 
and  which  still  claims  dominion  over  it.  A  premature  recognition 
under  these  circumstances,  if  not  looked  upon  as  a  justifiable 
cause  of  war,  is  always  liable  to  be  regarded  as  proof  of  an  un- 
friendly spirit  to  one  of  the  contending  parties."  He  therefore 

si  See  memorandum  of  questions  submitted  to  his  Cabinet,  Oct.  25,  1817. 
Writings  of  James  Monroe,  VI,  31. 

82  Clay  in  1817  mounted  what  John  Quincy  Adams  called  "his  South 
American  great  horse,"  and  by  means  of  resolutions  proposed  by  himself 
and  his  followers,  kept  the  question  of  recognition  of  these  provinces  con- 
stantly before  Congress  from  1818  to  1822,  in  an  effort  to  force  the  hand 
of  the  President.  Memoirs  of  John  Quincy  Adams,  IV,  28;  Annals  of 
Cong.,  15  Cong.,  1  Sess.,  II,  1468,  1569,  1646,  1652,  1655;  i~bid.,  16  Cong., 
1  Sess.,  II,  2223,  2229-2230;  2  Sess.,  1071,  1077,  1081,  1091-1092;  ibid., 
17  Cong.,  1  Sess.,  I,  854,  982. 

sa '  <  The  delay  which  has  been  observed  in  making  a  decision  on  this 
important  subject  will,  it  is  presumed,  have  afforded  an  unequivocal  proof 
to  Spain,  as  it  must  have  done  to  other  powers,  of  the  high  respect  enter- 
tained by  the  United  States  for  her  rights  and  of  their  determination  not  to 
interfere  with  them.  .  .  It  may  be  presumed  that  the  successful  progress  of 
the  revolution  through  such  a  long  series  of  years. . .  will  reconcile  the  parent 
country  to  an  acommodation  with  them  on  the  basis  of  their  unqualified  inde- 
pendence."  Message  to  Congress,  Mar.  8,  1822.  Eichardson,  op.  cit.,  II, 
116-118. 

34  Beeves,  American  Diplomacy  under  Tyler  and  Polk,  78. 


34  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [34 

announced  that  he  considered  it  "with  the  spirit  of  the  Con- 
stitution and  most  safe,"  that  the  power  of  recognition,  when 
probably  leading  to  war,  should  be  exercised  "with  a  previous 
understanding  with  that  body  by  whom  alone  war  can  be  de- 
clared, and  by  whom  all  provision  for  sustaining  its  perils  must  be 
furnished. ' ' 35 

The  Senate  Committee  on  Foreign  Kelations,  in  its  report 
of  January  11,  1897,  already  mentioned,36  altho  strongly  up- 
holding the  President's  right  to  the  power  of  recognition,  em- 
phasized also  the  dangers  involved  in  the  exercise  of  that  power, 
since  the  older  nation  might  regard  such  recognition  as  a  cause 
of  war.  The  question  whether  a  nation  should  recognize  an- 
other, and  thus  risk  going  to  war  with  a  third,  was  stated  to  be 
largely  a  question  of  expediency,  of  which  the  Executive  was 
the  best  qualified  to  judge,  tho  it  was  added  that  "if  recogni- 
tion of  such  independence  is  liable  to  become  a  casus  belli  with 
some  foreign  power,  ....  it  is  most  advisable  as  well 
as  proper  for  the  Executive  first  to  consult  the  legislative  branch 
as  to  its  wishes  and  postpone  its  own  action  if  not  assured  of 
legislative  approval.  If,  on  the  other  hand,  the  Executive  did 
not  consider  that  the  time  had  arrived  to  act,  expressions  of 
opinion  by  the  legislature  should  be  made  with  some  caution." 

It  seems  therefore  to  be  the  general  consensus  of  opinion  that, 
while  the  power  of  recognition  belongs  properly  to  the  President, 
it  is  a  power  that  may  easily  involve  serious  complications  with 
foreign  nations,  and  in  such  cases  should  be  exercised  with  due 
regard  for  the  wishes  of  that  branch  of  the  government  whose 
function  it  is  to  declare  war.  It  should  be  noted,  however,  that 
any  action  of  Congress  would  be  merely  advisory,  that  the  whole 
power  rests  with  the  President  alone.  "It  is  the  proper  prov- 
ince of  the  Executive  to  refuse  to  be  guided  by  a  resolution  on 
the  part  of  the  legislature,  if,  in  his  judgment,  to  do  so  would 
be  unwise.  The  legislature  may  express  its  wishes  or  opinions, 
but  may  not  command. ' ' 37 

ss  Eichardson,  op.  cit.,  Ill,  266-267. 

so  Senate  Document  No.  56,  54  Cong.,  2  Sess.,  2. 

37  Willoughby,  Constitutional  Law,  I,  462 ;  cf.  Corwin,  op.  cit.,  82.  "It  is 
not,  indeed,  a  power  likely  to  be  abused,  though  it  is  pregnant  with  conse- 
quences often  involving  the  question  of  peace  or  war.  And,  in  our  own  short 
experience,  the  revolutions  in  France,  and  the  revolutions  in  South  America, 
have  already  placed  us  in  situations  to  feel  its  critical  character,  and  the 


35]  CONTROL  OF  FOREIGN  RELATIONS  35 

From  his  power  to  receive  and  send  accredited  envoys,  the 
President  also  derives  the  power  to  withdraw  the  diplomatic 
representatives  of  the  United  States  at  his  pleasure,  or  dismiss 
those  of  foreign  powers,  and  thus  sever  all  relations  with  any 
particular  country  —  a  power  which  a  distinguished  authority 
has  said  "may  be  so  exercised  as  to  produce  most  momentous 
results."38 

This  power  to  sever  diplomatic  relations  is  a  power  that  has 
always  been  considered  as  peculiarly  within  the  province  of  the 
President,  and  until  very  recently  no  attempt  was  ever  made 
by  Congress  to  assert  any  authority  in  that  respect.  However, 
the  unsettled  condition  of  affairs  in  Mexico,  and  the  opinion  of 
some  people  that  President  Wilson  was  being  too  patient  in  his 
handling  of  Mexican  affairs,  led  to  the  introduction  by  Senator 
Fall  (New  Mexico),  on  December  3,  1919,  of  a  concurrent  reso- 
lution requesting  the  President  to  withdraw  recognition  from 
the  Carranza  Government  and  "to  sever  all  diplomatic  relations 
now  existing  between  this  Government  and  the  pretended  Gov- 
ernment of  Carranza. ' ' 39 

Tho  this  resolution  clearly  went  oeyond  the  traditional 
view  that  the  President  alone  has  the  entire  responsibility  for 
deciding  whether  or  not  diplomatic  relations  should  at  any  time 
be  severed,  there  seemed  to  be  a  disposition  on  the  part  of  the 
Foreign  Relations  Committee  of  the  Senate  to  recommend  it 
favorably  and  push  it  to  a  vote.  President  Wilson,  however, 
in  a  letter  of  December  8,  1919,  to  Senator  Fall,  vigorously  as- 
serted the  power  and  responsibility  of  the  Executive  in  this  mat- 
ter, expressing  himself  as  follows:  "I  should  be  gravely  con- 
cerned to  see  any  such  resolution  pass  the  Congress.  It  would 
constitute  a  reversal  of  our  constitutional  practice,  which  might 

necessity  of  having  at  the  head  of  the  government  an  executive  of  sober 
judgment,  enlightened  views,  and  firm  and  exalted  patriotism. ' '  Story,  Com- 
mentaries, II,  371. 

SB  Burgess,  Political  Science  and  Comparative  Constitutional  Law,  II,  251. 
Hamilton  did  not  seem  to  appreciate  the  tremendous  possibilities  in  the  ex- 
ercise of  this  power,  especially  to  receive  ministers,  for  he  passed  it  by  with 
this  brief  comment:  "This,  though  it  has  been  a  rich  theme  of  declamation, 
is  more  a  matter  of  dignity  than  of  authority.  It  is  a  circumstance  which  will 
be  without  consequence  in  the  administration  of  the  government. ' '  The  Fed- 
eralist, No.  68  (Goldwin  Smith  ed.,  pp.  383-384). 

39  See  text  of  resolution  in  N.  Y.  Times,  Dec.  4,  1919. 


36  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [36 

lead  to  very  great  confusion  in  regard  to  the  guidance  of  our 
foreign  affairs.  I  am  convinced  that  I  am  supported  by  every 
competent  constitutional  authority  in  the  statement  that  the 
initiative  in  directing  the  relations  of  our  Government  with 
foreign  Governments  is  assigned  by  the  Constitution  to  the 
Executive,  and  to  the  Executive  only.  Only  one  of  the  Houses 
of  Congress  is  associated  with  the  President  by  the  Constitution 
in  an  advisory  capacity,  and  the  advice  of  the  Senate  is  provided 
for  only  when  sought  by  the  Executive  in  regard  to  explicit 
agreements  with  foreign  Governments  and  the  appointment  of 
diplomatic  representatives  who  are  to  speak  for  this  Govern- 
ment at  foreign  capitals.  The  only  safe  course,  I  am  confident, 
is  to  adhere  to  the  prescribed  method  of  the  Constitution.  We 
might  go  very  far  afield  if  we  departed  from  it.  '  '  40 

Upon  receipt  of  this  letter,  Senator  Lodge,  chairman  of  the 
Senate  Committee  on  Foreign  Relations,  immediately  announced 
that  the  committee  would  not  push  the  Fall  resolution,  but  would 
leave  the  entire  responsibility  for  the  Mexican  situation  with  the 
President,  thus  virtually  acknowledging  the  soundness  of  the 
President  's  position.41 

The  breaking  of  diplomatic  relations,  while  not  in  itself  an  act 
of  war,  and  not  necessarily  resulting  in  war,  is  meant  to  be  a 
marked  protest  and  generally  does  lead  to  war.42  President  Wil- 
son thus  understood  very  well,  as  did  the  whole  country,  that  his 
action,  on  February  3,  1917,  in  dismissing  the  German  ambassa- 


.  T.  Times,  Dec.  9,  1919. 

41  '  '  Of  course  the  committee  will  do  nothing  now.     The  President  de- 
sires complete  responsibility  for  the  Mexican  situation  to  rest  on  him.    Let  it 
rest  there.     We  desired  only  to  assist  him  ;  he  does  not  wish  us  to  do  so.    He 
does  not  even  allow  us  to  express  our  support  or  make  a  suggestion.     The 
committee  will  not  again  consider  the  resolution.    We  are  through.  '  '  State- 
ment of  Senator  Lodge.    N.  T.  Times,  Dec.  9,  1919. 

42  See  T.  S.  Woolsey,  "The  Beginning  of  War,"  Proc.  Am.  Pol  Soi. 
Assn.,  I,  54-68,  esp.  57-60. 

Diplomatic  relations  with  Brazil  were  severed  in  1827  and  with  Mex- 
ico in  1858,  but  in  each  case  were  very  shortly  restored  without  any  in- 
tervening complications;  with  Mexico  they  were  broken  off  also  in  1836, 
and  continued  broken  for  three  years,  without  war  ;  relations  between 
Turkey  and  the  United  States  were  severed  Apr.  20,  1917,  but  war  was 
never  declared  between  the  two  countries.  Beeves,  American  Diplomacy 
under  Taylor  and  Polk,  76;  Moore's  Digest,  VII,  103-105;  N.  Y.  Times 
Current  Hist.  Mag.,  VI,  437. 


37]  CONTROL  OF  FOREIGN  RELATIONS  37 

dor  to  the  United  States  and  recalling  Ambassador  Gerard  from 
Berlin,  was  very  likely  the  first  step  towards  actual  war,  al- 
tho  in  his  address  to  Congress  on  that  date  he  expressed  him- 
self as  hopeful  that  further  complications  might  be  avoided.43 

Finally,  the  President  may  to  a  considerable  extent  determine 
questions  relating  to  the  peace  of  the  United  States  through  his 
power  to  enter  into  so-called  executive  agreements  with  other 
powers.  The  Constitution  requires  that  treaties  can  only  be  made 
by  the  President  by  and  with  the  advice  and  consent  of  the  Sen- 
ate,44 but  "treaties"  by  no  means  include  every  sort  of  interna- 
tional arrangement  entered  into.  Agreements  of  various  sorts, 
some  concerning  only  minor  and  routine  matter,  others  on  mat- 
ters of  considerable  importance  and  delicacy,  are  frequently 
made  by  the  President  without  the  knowledge  or  consent  of  the 
Senate,  and  are  by  long  practise  considered  to  be  within  the 
range  of  his  authority.45  Such  agreements,  altho  not  a  part 
of  the  "supreme  law  of  the  land,"  as  are  treaties,  nevertheless 
are  considered  binding  upon  the  administration  making  them, 
but  not  upon  succeeding  administrations.46  As  a  matter  of  fact, 
most  of  these  agreements  covering  matters  of  any  considerable 
importance  have  been  respected  by  the  successors  of  those  mak- 
ing them,  and  have  by  general  consent  come  to  have  the  effect  of 
a  settled  law. 

Such  executive  agreements  take  the  various  forms  of  a  protocol, 
a  modus  vivendi,  an  exchange  of  notes  or  memoranda,  or  a  mere 
"gentlemen's  agreement,"  and  are  entered  into  by  the  Presi- 
dent by  virtue  of  his  power  as  Commander-in-Chief  or  of  his 
diplomatic  powers.47  As  an  example  of  executive  agreements 
based  upon  the  first  class  of  powers  may  be  mentioned  the  agree- 
ment of  1817  with  Great  Britain  for  the  limitation  of  naval 
armaments  on  the  Great  Lakes. 

This  agreement  was  brought  about  by  an  exchange  of  notes 

43  gee  text  of  address  in  McKinley,  Collected  Materials  for  the  Study 
of  the  War  (1st  ed.),  11-12. 

44  Art.  II,  Sec.  2,  01.  2. 

45  J.   B.  Moore,  in  Pol.  Sci.   Quar.,  XX,  388-390;    Ogg  &  Beard,  Na- 
tional Governments  and  the  World  War,  102. 

46  Butler,    The   Treaty-Making   Power   of   the   United   States,   II,   370; 
Angarica  v.  Bayard,  127  U.  S.,  251,  261    (1888). 

47  Corwin.  The  President's  Control  of  Foreign  Eelations,  116. 


38  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [38 

between  the  British  minister  at  "Washington  (Mr.  Bagot)  and  the 
Acting  Secretary  of  State  (Mr.  Rush),  and  provided  that  neither 
party  should  keep  in  service  on  Lakes  Champlain  and  Ontario 
more  than  one,  and  on  Lake  Erie  and  the  upper  lakes  more  than 
two  armed  vessels,  none  of  these  to  be  armed  with  more  than  one 
cannon,  and  all  other  armed  vessels  of  both  parties  to  be  dis- 
mantled.48 Altho  President  Monroe  nearly  a  year  later  submit- 
ted the  arrangement  to  the  Senate  for  its  approval,49  this  action 
was  merely  perfunctory,  since  the  agreement  had  become  ef- 
fective immediately  after  the  date  of  the  original  exchange  of 
notes  (April  28-29, 1817),  through  orders  issued  by  the  Secretary 
of  the  Navy  to  the  naval  officers  commanding  on  the  Great 
Lakes.50  The  arrangement  was  definitely  undertaken  as  a  meas- 
ure to  preserve  the  peace  between  the  two  countries,51  and  re- 
mains to  this  day  as  a  striking  example  of  what  may  be  done 
towards  that  end  by  purely  Executive  action. 

Another  agreement  between  these  two  countries  of  somewhat 
similar  import  with  respect  to  armament  was  entered  into  by 
means  of  a  protocol  signed  at  London,  December  9,  1850,  by  the 
United  States  minister  (Abbott  Lawrence)  and  Lord  Palmer- 
ston,  under  which  the  British  government  ceded  Horseshoe  Keef 
in  Lake  Erie  to  the  United  States,  the  latter  agreeing  to  erect  a 

48  Am.  State  Papers,  For.  Eel,  IV,  205-206. 

49  Message  to  the  Senate,  Apr.  6,  1818.     Ibid.,  202.  John  Quincy  Adams 
says    on    Jan.    14,    1818,   that    the    President   did    not    think   it   necessary 
to    communicate    the    arrangement    to    Congress.      Memoirs,    IV,    41.    The 
Senate  gave   its   approval  Apr.    16,   1818,   following  which  the   President 
issued   a  formal   proclamation   April   28,   announcing  that   the   agreement 
was  in  effect.  Am.  State  Papers,  For.  Eel.,  IV,  207. 

eo  The  terms  of  the  agreement  were  communicated  by  Mr.  Bush  to 
Secretary  of  the  Navy  Crowninshield  on  Apr.  30,  1817,  and  the  necessary 
orders  were  issued  by  the  latter  May  2.  Ibid.,  206-207. 

5i  "The  President  (Madison),  being  satisfied  that,  if  each  nation 
should  maintain  on  the  lakes  a  naval  force,  it  would  expose  both  to  con- 
siderable and  useless  expense,  while  it  would  multiply  the  risks  of  col- 
lision between  them,  instructed  Mr.  Adams,  shortly  after  the  peace,  to 
make  the  proposals. .  .in  the  hope  that  it  might  be  carried  into  immediate 
effect."  Monroe  to  Bagot,  Aug.  2,  1816.  Ibid.,  203.  "This  arrange- 
ment for  mutual  disarmament  on  the  lakes  has  undoubtedly  been  the  great- 
est single  factor  in  the  continuance  of  peaceful  relations  between  the 
United  States  and  Great  Britain  during  the  last  one  hundred  years."' 
Updyke,  Diplomacy  of  the  War  of  1812,  465-466. 


39]  CONTROL  OF  FOREIGN  RELATIONS  39 

light-house  but  to  maintain  no  fortifications.  The  agreement 
was  ratified  by  an  exchange  of  notes  in  London,  February  10, 
1851,  with  no  formal  ratification  on  the  part  of  either  country, 
and  the  light-house  was  erected  in  1856  upon  the  appropriation 
of  the  necessary  funds  by  Congress.52 

In  1859  a  dispute  between  the  United  States  and  Great  Britain 
over  the  island  of  San  Juan  off  the  Pacific  coast,  which  threat- 
ened to  cause  serious  difficulty  between  the  two  countries,  was 
settled  by  an  agreement,  reached  through  an  exchange  of  notes, 
for  joint  military  occupation  of  the  island.53  This  arrangement 
which  continued  until  the  entire  island  was  given  over  to  the 
United  States  under  an  arbitral  decision  in  1873,  was  upheld  by 
the  courts  as  a  proper  exercise  of  Executive  authority,  even  to 
the  extent  of  modifying,  in  the  interest  of  peace,  existing  sta- 
tutes for  the  government  of  the  disputed  territory.54 

Perhaps  the  most  remarkable  exercise  of  the  President's  power 
to  make  international  agreements  without  the  consent  of  the 
Senate,  by  virtue  of  his  authority  as  Commander-in-Chief,  is 
the  protocol  concluded  September  7,  1901,  between  China  and 
the  Allied  Powers  that  had  intervened  during  the  Boxer  upris- 
ing. This  protocol  required  reparation  for  the  murder  of  the 
German  minister,  and  punishment  of  the  principal  authors  of 
the  outrages  committed  against  foreigners  during  the  uprising; 
prohibited  to  China  the  importation  of  arms  and  ammunition  or 
of  materials  used  exclusively  for  their  manufacture;  demand- 
ed an  indemnity  of  450,000,000  taels;  constituted  an  extrater- 
ritorial quarter  for  the  foreign  legations  in  Peking;  permitted 
temporary  occupation  by  the  Powers  of  certain  strategic  points ; 

62  J.  B.  Moore,  in  Pol.  Sci.  Quar.,  XX,  390. 

ss  Crandall,  Treaties:  Thevr  Making  and  Enforcement,  106;  Foster,  Prac- 
tice of  Diplomacy,  321. 

r,  i '  <  The  power  to  make  and  enforce  such  a  temporary  convention 
respecting  its  own  territory  is  a  necessary  incident  to  every  national  gov- 
ernment, and  adheres  where  the  executive  power  is  vested. . .  This  par- 
ticular convention  should  be  allowed  to  modify  for  the  time  being  the 
operation  of  the  organic  act  of  this  Territory,  so  far  forth  as  to  exclude 
to  the  extent  demanded  by  the  political  branch  of  the  government  of  the 
United  States,  in  the  interest  of  peace,  all  territorial  interference  in  the 
government  of  that  island."  Watts  v.  United  States,  1  Wash.  Terr.,  288, 
294  (1870),  quoted  in  Crandall,  op.  tit.,  106-107. 


40  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [40 

and  required  numerous  undertakings  on  the  part  of  China,  es- 
pecially with  regard  to  the  conduct  of  her  foreign  relations.55 

This  protocol  was  signed  on  the  part  of  the  United  States  by 
W.  W.  Kockhill,  whose  appointment  as  special  commissioner  to 
China  had  not  been  submitted  to  the  Senate ;  it  went  into  effect 
without  any  further  ratification,  the  whole  matter  thus  being 
carried  on  and  concluded  by  authority  of  the  Executive  alone. 

It  is  now  authoritatively  recognized  that  the  President,  with- 
out legislative  authority,  but  solely  by  virtue  of  his  powers  as 
Commander-in-Chief,  may  permit  or  refuse  the  entry  of  foreign 
troops  into  the  United  States.56  By  virtue  of  the  same  authority, 
arrangements  were  made  with  Mexico  in  1882,  through  an  ex- 
change of  notes,  for  the  reciprocal  passage  of  troops  across  the 
border  in  pursuit  of  hostile  Indians.  It  is  worthy  of  note  that 
the  Mexican  Executive  was  distinctly  authorized  by  the  Mexican 
Senate  to  permit  such  crossing  of  troops,  while  in  the  United 
States  the  terms  of  the  agreement  were  referred,  not  to  the  Sen- 
ate, but  to  the  General  of  the  Army,  and  approved  by  him  and 
the  Secretary  of  War.57  These  arrangements  were  renewed  at 
various  times,58  and  form  the  basis  for  the  attempted  agreements 
of  like  nature  during  the  border  troubles  in  1916.59  A  similar 

65  See  text  of  protocol  in  For.  Eel.  1901,  App.,  312-318.  Foster  calls 
this  "probably  the  broadest  exercise  of  executive  authority  in  foreign 
matters  without  the  concurrence  of  the  Senate."  Practice  of  Diplomacy, 
318. 

ee  Tucker  v.  Alexandra/,  183  U.  S.,  424,  435  (1902).  Cf.  Washington's 
refusal  to  permit  British  troops  to  cross  United  States  territory  in  1790, 
and  the  opinions  of  his  Cabinet  on  the  question.  Writings  of  George 
Washington,  XI,  497,  n. ;  Writings  of  Thomas  Jefferson,  V,  238-239 ;  Works 
of  Alexander  Hamilton,  IV,  20-49;  Life  and  Works  of  John  Adams,  VIII, 
497-500. 

57  For.  Bel.  1882,  396-397,  405,  419-426.  The  memorandum  signed  by 
Secretary  Frelinghuysen  and  Minister  Eomero  stated  that  since  the  Mexi- 
can Senate  had  authorized  the  President  of  Mexico  to  allow  the  passing 
of  Mexican  troops  into  the  United  States  and  of  United  States  troops  into 
Mexico,  "and  the  Constitution  of  the  United  States  empowers  the  Presi- 
dent of  the  United  States  to  allow  the  passag6  without  the  consent  of  the 
Senate,  this  agreement  does  not  require  the  sanction  of  the  Senate  of  either 
country,  and  will  begin  to  take  effect  twenty  days  after  this  date 
(July  29,  1882)." 

88  June  28,  1883;  Oct.  31,  1884;  Oct.  16,  1885;  June  25,  1890;  Nov. 
25,  1892;  June  4,  1896. 

59  N.  Y.  Times  Current  Hist.  Mag.,  IV,  403,  616,  618-619,  627. 


41]  CONTROL  OP  FOREIGN  RELATIONS  41 

arrangement  with  Great  Britain  for  the  reciprocal  crossing  of 
the  Canadian  boundary  was  proposed  by  Secretary  Frelinghuy- 
sen  in  1883,  but  was  rejected  by  Canada  on  the  ground  that  it 
involved  the  "risk  of  complications  worse  than  that  of  Indian 
raids."60 

Among  executive  agreements  entered  into  by  virtue  of  the 
President 's  diplomatic  powers,  and  dealing  with  matters  causing 
considerable  dispute,  difficulty,  and  possible  complications,  may 
be  mentioned  an  agreement  of  1885  with  Great  Britain,  reached 
by  an  exchange  of  memoranda,  with  regard  to  the  fisheries 
question ; 61  a  modus  vivendi  with  the  same  country  in  1899  fix- 
ing a  provisional  boundary  between  Alaska  and  Canada;62  the 
protocol  of  1873  settling  the  Virginius  affair  with  Spain  ;63  Sec- 
retary of  War  Taft's  adjustment  of  the  boundaries  of  the 
Panama  Canal  Zone ; 64  and  the  Root-Takahira  and  Lansing- 
Ishii  agreements  of  1907  and  1917,  respectively.65 

The  action  of  President  Roosevelt  in  1905  with  regard  to 

e°  See  report  of  the  Indian  Commissioner  for  the  Northwest  Territories 
(Canada).  For.  Eel.  188S,  528. 

ei  For.  Eel.  1885,  460-469.  ' '  This  agreement  proceeds  from  the  mu- 
tual good-will  of  the  two  governments,  and  has  been  reached  solely  to 
avoid  all  misunderstandings  and  difficulties  which  might  otherwise  anse 
from  the  abrupt  termination  of  the  fishing  of  1885  in  the  midst  of  the 
season."  Statement  of  Secretary  Bayard.  Ibid.,  460. 

62  For.  Eel.  1899,  328-330. 

esCrandall,  op.  cit.,  107-108. 

6*  "  I  had  no  power  to  make  a  treaty  with  Panama,  but  I  did  have, 
with  the  authority  of  the  President,  the  right  to  make  rules  equivalent 
to  law  in  the  Zone.  I  therefore  issued  an  order  directing  the  carrying 
out  of  the  plan  agreed  upon,  in  so  far  as  it  was  necessary  to  carry  it  out 
on  our  side  of  the  line,  on  condition  that,  and  as  long  as,  the  regulations 
to  be  made  by  Panama  were  enforced  by  that  government.  This  was  ap- 
proved by  Secretary  Hay  and  the  President,  and  has  constituted  down 
until  the  present  day,  I  believe,  the  basis  upon  which  the  two  govern- 
ments are  carried  on  in  this  close  proximity.  It  was  attacked  vigorously 
in  the  Senate  as  a  usurpation  of  the  treaty-making  power,  and  I  was 
summoned  before  a  committee  in  the  Senate  to  justify  what  had  been 
done.  There  was  a  great  deal  of  eloquence  over  this  usurpation  by  Mr. 
Morgan  and  other  Senators,  but  the  modus  vivendi  continued  as  the 
practical  agreement  between  the  nations  for  certainly  more  than  seven 
years,  and  my  impression  is  that  it  is  still  in  force  in  most  of  its  pro- 
visions." Taft,  Our  Chief  Magistrate  and  his  Powers,  111-112. 

as  for.  Eel.  1908,  510-512;  Am.  Jour.  Int.  Law,  XII,  Supp.,  1-3. 


42  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [42 

Santo  Domingo  is  especially  noteworthy  in  this  connection,  in 
that  a  treaty  was  first  negotiated  providing  that  the  United 
States  should  guarantee  the  integrity  of  that  country,  take 
charge  of  its  customs,  and  settle  its  obligations;  and  when  this 
treaty  failed  of  ratification  in  the  Senate,  President  Roosevelt 
nevertheless  put  its  terms  into  effect  through  a  modus  vivendi. 
For  two  years  the  affairs  of  that  island  were  administered  under 
the  sole  authority  of  this  executive  agreement,  until  in  1907  the 
Senate  yielded  and  ratified  a  slightly  revised  treaty.68 

The  President  is  thus  enabled,  through  his  power  of  entering 
into  these  executive  agreements  which  do  not  require  the  sanc- 
tion of  the  Senate,  to  assume  complete  responsibility  for  the 
handling  of  matters  of  almost  every  variety  in  the  field  of 
foreign  relations,  many  of  which  involve  complications  and  deli- 
cate questions  that  might,  easily  affect  the  peace  and  safety  of 
the  United  States. 


66  Latane,  America  as  a  World  Power,  280-281 ;    J.  B.  Moore,  in  PoL 
Sci.  Quar.,  XX,  386-387;  Roosevelt,  Autobiography,  551-552. 


CHAPTER  III 

MILITARY  MEASURES  SHORT  OF  WAR 

By  virtue  of  his  position  as  Commander-in-Chief,  as  well  as 
by  authority  of  other  constitutional  and  statutory  provisions,  the 
President  may  undertake  numerous  military  measures  that  are 
short  of  actual  war.  In  the  first  place,  there  are  many  instances 
in  which  he  may  employ  the  armed  forces  to  aid  the  civil  au- 
thorities within  the  United  States.  Thus,  for  example,  the  con- 
stitutional clause  guaranteeing  to  every  state  a  republican  form 
of  government  and  protection  against  domestic  violence,1  is  held 
to  give  the  President  power  to  use  troops,  without  special  legis- 
lative sanction,  when  needed  for  those  purposes,  and  even  to  an- 
ticipate and  prevent  local  disturbances  by  a  show  of  force.2 

In  1878  an  attempt  was  made  to  restrict  the  President 's  power 
to  use  the  armed  forces  in  executing  the  laws  of  the  United 
States  through  an  act  of  Congress  forbidding  the  employment  of 
the  army  as  a  posse  comitatus,  except  as  expressly  authorized  by 
the  Constitution  or  by  statute.3  It  has  been  held,  however,  in 
spite  of  that  statute,  that  the  provisions  of  the  Constitution  vest- 
ing the  President  with  the  executive  power  and  making  it  his 
duty  to  ' '  take  care  that  the  laws  be  faithfully  executed, ' ' 4 
must  be  construed  as  giving  to  the  President  the  general  power 
of  enforcing  the  laws  and  the  "peace  of  the  United  States"  by 
any  means  that  he  may  find  necessary.5  ' '  Congress  may,  by  dis- 

1  Art.  IV,  Sec.  4. 

2  Lieber,  The   Use  of  the  Army  in  Aid  of  the  Civil  Power,  30-37,45; 
Winthrop,  Abridgment  of  Military  Law,  (2nd  ed.),  336-337.  Cf.  the  send- 
ing of  troops  under  Gen.  Wood  to  Gary  in  1919  to  prevent  disorder  dur- 
ing the  steel  strike. 

3  Act  of  June  18,  1878.  20  Stat.  at  L.,  145,  152  (Sec.  15). 
*  Art  II,  Sec.  1,  Cl.  1 ;  Sec.  3. 

5  Lieber,  op.  tit.,  14,  37,  40,  55;  Ex  parte  Siebold,  100  U.  8.,  371, 
394-395  (1879);  In  re  Neagle,  135  U.  S.,  1,  63-64,  67,  69  (1890).  Cf. 

43 


44  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [44 

banding  the  Army,  render  it  impossible  for  the  President  to 
resort  to  his  constitutional  power  as  executive  and  commander- 
in-chief  of  employing  the  Army  in  aid  of  the  civil  power,  in  the 
execution  of  the  laws,  or  may  couple  an  appropriation  for  the 
support  of  the  Army  with  a  condition  as  to  the  use  of  the 
money  appropriated ;  but,  if  it  be  true  that  the  Constitution  di- 
rectly vests  the  President  with  (this)  duty  and  power  .  .  . 
Congress  cannot  make  the  exercise  of  such  power  illegal.  It  may 
prevent  its  exercise,  but  it  cannot  make  it  illegal. ' ' 6 

These  constitutional  powers  are  also  reinforced  by  statutory 
authorization  to  use  the  armed  forces  in  aid  of  the  civil  power  in 
several  specific  instances.  Thus  the  President  is  expressly  em- 
powered to  employ  the  land  or  naval  forces  to  such  extent  as 
may  be  necessary  for  the  protection  of  civil  rights ;  for  carrying 
out  the  guarantees  to  the  Indians;  for  the  preservation  of  the 
public  lands  and  forests;  and  for  the  enforcement  of  the  laws 
with  respect  to  quarantine,  extradition,  and  neutrality.7 

In  none  of  these  instances  should  the  exercise  of  his  powers 
by  the  President  cause  any  difficulties  or  complications  with 
foreign  nations,  except  in  the  case  of  the  enforcement  of  the  neu- 
trality laws  of  the  United  States.  In  this  connection,  mention 
need  only  be  made  of  such  incidents  as  Washington's  famous 
neutrality  proclamation  of  1793,8  the  Fenian  invasion  of  Canada 

President  Cleveland's  use  of  troops  in  Chicago  during  the  railroad  strike 
of  1894,  over  the  protest  of  Gov.  Altgeld. 

6  Lieber,  op.  tit.,  56-57.  See  also  opinions  of  ex- Attorney  General 
Miller  and  Senator  Edmunds.  Ibid.,  15  n.,  43;  cf.  Pomeroy,  Constitution- 
al Law  (Bennett  ed.),  537-538. 

iU.  S.  Rev.  Stats.,  Sees.  1984,  1989;  2118,  2147,  2150-2152;  2460, 
5596;  4792,  5275;  23  Stat.  at  L.,  322;  31  ibid.,  618;  35  ibid.,  1088, 
1089.  These  are  conveniently  listed  in  Army  Regulations  (ed.  1917), 
106-109. 

8  The  first  neutrality  law  of  the  United  States  was  not  passed  until 
1794,  hence  Washington's  proclamation  was  based  not  on  statutory  au- 
thority, but  on  the  obligations  of  neutrality  as  defined  in  the  law  of 
nations.  Writings  of  George  Washington,  XII,  281-282.  Cf.  with  Wilson's 
proclamations  of  neutrality  in  1914.  U.  S.  Stats.,  63  Cong.,  2  Sess.,  Pt. 
2,  Procs.,  62  ff.  The  right  of  the  President  to  commit  the  country  to  a 
policy  of  neutrality  wa's  vigorously  condemned  and  defended  by  Madison 
and  Hamilton,  respectively,  in  the  famous  Helvidius  and  Pacificus  letters. 
For  pertinent  extracts  of  these  letters,  as  well  as  for  comment  upon  them, 
see  Corwin,  The  President's  Control  of  Foreign  Relations,  ch.  1. 


45]  MILITARY   MEASURES   SHORT  OF   WAR  45 

in  1866,9  the  numerous  filibustering  expeditions  against  Cuba 
and  other  countries,10  and  the  strong  feeling  of  the  Central  Pow- 
ers against  the  manner  in  which  the  neutrality  of  the  United 
States  was  enforced  during  the  the  first  years  of  the  recent 
World  "War,  to  indicate  the  delicate  nature  of  the  President's 
responsibility  in  this  regard,  and  the  possible  international  com- 
plications that  may  result.11 

The  President  has  also  been  empowered  on  some  occasions, 
and  on  other  occasions  has  exercised  the  power  without  specific 
authority,  to  undertake  military  measures  for  the  protection  of 
the  so-called  ''inchoate"  interests  of  the  United  States  —  meas- 
ures that  involve  a  considerable  interference  with  the  rights  of 
other  nations  and  are  therefore  fraught  with  serious  possibilities. 
As  early  as  January  15,  1811,  a  resolution  of  Congress  asserted 
the  peculiar  interest  of  the  United  States  in  the  Spanish  province 
of  Florida  and  declared,  "That  the  United  States,  under  the 
peculiar  circumstances  of  the  existing  crisis,  cannot,  without 
serious  inquietude,  see  any  part  of  the  said  territory  pass  into  the 
hands  of  a  foreign  Power;  and  that  a  due  regard  to  their  own 
safety  compels  them  to  provide,  under  certain  contingencies, 
for  the  temporary  occupation  of  the  said  territory ;  they,  at  the 
same  time,  declare  that  the  said  territory  shall,  in  their  hands, 
remain  subject  to  future  negotiation. ' ' 

Following  out  the  sentiment  of  this  resolution,  an  act  of  the 
same  date  authorized  the  President,  by  means  of  the  military 
and  naval  forces,  to  take  possession  of,  hold,  and  occupy  the  terri- 

»For  an  excellent  account  of  this  incident,  together  with  the  compli- 
cations it  involved,  see  Oberholtzer,  History  of  the  United  States  since 
the  Civil  War,  I,  524-537,  esp.  528,  532,  534-535. 

10  Latane,  America  as  a  World  Power,  8-9 ;    Chadwick,  Relations  of  the 
United  States  and  Spain:  Diplomacy,  411-426;    Smith,  Parties  and  Slav- 
ery, 251-256. 

11  President    Polk    in    1848    found    it    difficult    to    reconcile    his    frank 
sympathy  for  the  Irish  with  his  duty  to  enforce  the  neutrality  laws  against 
American   citizens  aiding  the   Irish   revolt,   and  when  called  upon  by  the 
British  government  to  act,  hesitated  in  the  hope  that  the  issue  might  be 
evaded.     With  regard  to  the  expedition  of  the  so-called  ' '  Buffalo  Hunt- 
ers" against  Mexico  in  the  same  year,  he  had  no  such  qualms,  but  im- 
mediately sent  instructions  to  Gen.   Taylor  to  use  such  military  force  as 
was  necessary  to  check  the  movement.     Diary  of  James  K.  Polk,  IV,  104- 
106,  109,  112. 


46  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [46 

tory  of  East  Florida,  if  necessary  to  prevent  its  occupation  by 
any  foreign  government,  and  to  establish  a  temporary  govern- 
ment over  that  region ;  while  another  act  of  February  12,  1813, 
authorized  him  to  take  similar  action  with  regard  to  West  Flor- 
ida.12 

As  a  result  of  these  acts,  Amelia  Island  in  East  Florida,  cap- 
tured from  the  Spanish  in  1811  by  a  party  of  so-called  "pa- 
triots," assisted  by  a  few  American  troops  and  gun-boats,  was 
held  by  the  United  States  and  subject  to  regulations  imposed 
by  American  officers  for  more  than  a  year ;  while  in  West  Flor- 
ida, the  city  of  Mobile  was  seized  by  General  Wilkinson  in  1813, 
under  orders  from  the  President,  and  never  surrendered.13 

Again  in  1819,  the  treaty  ceding  Florida  to  the  United  States 
having  been  signed,  but  not  yet  ratified  by  Spain,  President  Mon- 
roe suggested  to  Congress  that  the  interests  of  the  United  States 
in  Florida  were  such  that  he  should  be  authorized  to  occupy  that 
territory  and  carry  out  the  provisions  of  the  treaty  as  if  it 
were  in  effect.14  Military  measures  for  the  occupation  of  Flor- 
ida were  contemplated,  even  to  the  extent  of  reducing  St.  Au- 
gustine by  "regular  siege,"  if  necessary,15  but  fortunately  for 
the  peace  of  the  two  countries,  Congress  did  not  see  fit  at  that 
time  to  authorize  such  action.16 

12  These  are  the  famous  ' '  secret  laws ' '  referred  to  by  John  Quincy 
Adams  as  ' '  those  singular  anomalies  of  our  system  which  have  grown 
out  of  that  error  in  our  Constitution  which  confers  upon  the  legislative 
assemblies  the  power  of  declaring  war."  He  also  says  that  there  are 
four  of  these  secret  laws  and  one  resolution;  "and  one  of  the  laws,  that 
of  25th  June,  1812,  is  so  secret  that  this  day  it  could  not  be  found  among 
the  rolls  at  the  Department."  Memoirs,  TV,  32  (Dee.  30,  1817).  The  act 
of  1812  referred  to  by  Adams  has  apparently  not  yet  been  found  or  pub- 
lished, while  the  fourth  law  to  which  he  refers  is  probably  that  of  Mar.  3, 
1811,  which  placed  the  ban  of  secrecy  on  these  acts,  including  itself.  The 
injunction  of  secrecy  was  removed  July  6,  1812,  but  the  laws  were  not 
published  until  1818.  See  Annals  of  Cong.,  15  Cong.,  1  Sess.,  II,  App., 
2601-2604. 

is  Thomas,  Military  Government  in  Newly  Acquired  Territory  of  the 
United  States,  55-56. 

i*  Message  of  Dec.  7,  1819.  Richardson,  Messages  and  Papers  of  the 
Presidents,  II,  57;  cf.  Memoirs\  of  John  Quincy  Adams,  IV,  480. 

i*  Jameson,  ' '  Calhoun  Correspondence, ' '  in  Eeport,  Am.  Hist.  Assn., 
1899,  II,  164-165,  165-166. 

1°  The  act  for  carrying  the  treaty  into  effect  was  passed  Mar.  3,  1821, 
while  the  exchange  of  ratifications  occurred  in  February. 


47]  MILITARY   MEASURES   SHORT   OF   WAR  47 

The  right  of  the  President  to  undertake  military  measures 
for  the  protection  of  these  "inchoate  interests"  of  the  United 
States,  even  without  legislative  sanction,  was  apparently  first 
asserted  in  1844.  In  that  year  President  Tyler,  having  entered 
into  negotiations  with  Texas  for  its  annexation  to  the  United 
States,  ordered  such  a  concentration  of  the  land  and  naval  forces 
as  to  protect  Texas  against  the  danger  of  a  Mexican  invasion 
while  the  treaty  of  annexation  was  under  consideration  in  the 
Senate.17  In  response  to  a  Senate  resolution  of  inquiry,  the  Presi- 
dent defended  his  action  by  declaring  it  as  his  opinion  "that 
the  United  States  having  by  the  treaty  of  annexation  acquired  a 
title  to  Texas  which  required  only  the  action  of  the  Senate  to 
perfect  it,  no  other  power  could  be  permitted  to  invade  and  by 
force  of  arms  to  possess  itself  of  any  portion  of  the  territory  of 
Texas  pending  your  deliberations  upon  the  treaty  without  plac- 
ing itself  in  a  hostile  attitude  to  the  United  States  and  justifying 
the  employment  of  any  military  means  at  our  disposal  to  drive 
back  the  invasion. ' ' 18 

In  spite  of  vigorous  denunciation  of  this  action  in  Congress 
and  a  threat  of  impeachment  against  President  Tyler,19  the 
same  doctrine  of  an  inchoate  interest  in  Texas  was  advocated  by 
President  Polk.  He  declared  that  "the  moment  the  terms  of 
annexation  offered  by  the  United  States  were  accepted  by  Texas 
the  latter  became  so  far  a  part  of  our  country  as  to  make  it  our 
duty  to  afford  such  protection  and  defense ; " 20  and  therefore, 

IT  Corwin,  The  President's  Control  of  Foreign  Eelations,  156;  Beeves, 
American  Diplomacy  under  Tyler  and  Polk,  169;  Eichardson,  op.  tit., 
IV,  317. 

is  Message  to  Senate,  May  15,  1844.  Richardson,  op.  cit.,  IV,  317. 

i» Beeves,  op.  cit.,  163.  Senator  Benton  replied  to  the  President's 
message  as  follows :  ' '  This  is  a  reversal  of  the  power  of  the  Senate,  and 
a  reading  backwards  of  the  Constitution.  It  makes  an  act  of  de- 
feasance from  the  Senate  necessary  to  undo  a  treaty  which  the  President 
sends  to  us,  instead  of  requiring  our  assent  to  give  it  validity.  It  as- 
sumes Texas  to  be  in  the  Union,  and  protected  by  our  Constitution  from 
invasion  or  insurrection,  like  any  part  of  the  existing  States  or  Terri- 
tories; and  to  remain  so  till  the  Senate  puts  her  out  by  rejecting  the 
treaty!  This,  indeed,  is  not  merely  reading,  but  spelling  the  Constitution 
backwards!  It  is  reversing  the  functions  of  the  Senate  and  making  it 
a  nullifying,  instead  of  a  ratifying  body."  Cong.  Globe,  XIII,  App., 
498  (28  Cong.,  1  Sess.,  June  1,  1844). 

20  Message  to  Congress,  Dec.  2,  1845.  Bichardson,  op.  cit.,  IV,  388. 


48  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [48 

in  May,  1845,  he  ordered  General  Taylor  to  cross  into  Texas  to 
protect  it  pending  annexation.21  Clearly,  the  action  of  Presi- 
dent Polk  had  more  basis  than  that  of  President  Tyler.  Tyler 
considered  himself  empowered  to  protect  territory  whose  acquisi- 
tion was  merely  proposed  in  a  treaty  not  yet  ratified,  and  which, 
in  fact,  failed  of  ratification;  while  Folk's  action  had  at  least 
the  justification  that  the  annexation  of  Texas  was  then  an  as- 
sured fact,  altho  at  that  time  not  formally  in  effect. 

President  Grant's  policy  with  regard  to  Santo  Domingo  (1869- 
1871)  likewise  involved  the  principle  of  an  inchoate  interest  on 
the  part  of  the  United  States  which  the  President  was  empow- 
ered to  protect.  Having  negotiated  with  President  Baez  a  treaty 
of  annexation  by  a  most  unusual  method  and  almost  without  the 
knowledge  of  his  Cabinet,  Grant  sent  a  strong  naval  force  to  the 
island  to  protect  it  from  invasion  and  from  internal  disorder, 
not  only  during  the  consideration  of  the  treaty  by  the  Senate, 
but  even  after  its  rejection,22  on  the  ground  that  "the  Govern- 
ment of  the  United  States  is  peculiarly  interested  in  the  exemp- 
tion of  the  Dominican  Republic  both  from  internal  commotions 
and  from  invasions  from  abroad. ' ' 23 

The  President's  action  was  severely  condemned  on  the  floor 
of  the  Senate,  especially  by  such  men  as  Sumner  and  Schurz. 
Schurz  declared  the  doctrine  that  the  President  could,  by  mak- 
ing a  treaty,  create  an  inchoate  right  to  some  foreign  territory, 
and  then,  without  authority  from  Congress,  commit  acts  of  war 
for  the  enforcement  of  that  inchoate  right,  to  be  "the  hugest 
absurdity,  the  most  audacious  preposterosity,  the  most  mischie- 
vous, dangerous,  and  anti-republican  doctrine  that  ever  was 
broached  on  the  floor  of  the  Senate. ' ' 24 

Senator  Sumner  likewise  bitterly  scored  the  action  of  the 
President,  and  offered  a  resolution  condemning  the  employment 
of  the  Navy  without  the  authority  of  Congress  against  a  friendly 
foreign  nation  or  in  belligerent  intervention  in  the  affairs  of  a 

21  Bichardson,  op,  cit.,  IV,  388-389 ;    Beeves,  op  cit.,  277. 

22Bhodes,  History  of  the  United  States,  VI,  346-354;  Corwin,  op.  cit., 
158.  For  Grant's  instructions  to  the  U.  S.  naval  officers,  see  Moore's 
Digest  of  International  Law,  I,  278. 

23  Secretary  of  State  Fish  to  Mr.  Bassett,  minister  to  Hayti,  Nov.  16, 
1870.  Moore's  Digest,  I,  279.      The  treaty  had  been  rejected  June  30,  pre- 
ceding. 

24  Cong.  Globe,  42  Cong.,  1  Sess.,  Pt.  II,  App.,  52. 


49]  MILITARY    MEASURES    SHORT   OF    WAR  49 

foreign  nation,  as  "an  infraction  of  the  Constitution  of  the 
United  States  and  a  usurpation  of  power  not  conferred  upon  the 
President."  The  resolution  further  declared,  "That  while  the 
President,  without  any  previous  declaration  of  war  by  act  of 
Congress,  may  defend  the  country  against  invasion  by  foreign 
enemies,  he  is  not  justified  in  exercising  the  same  power  in  an 
outlying  foreign  island,  which  has  not  yet  become  part  of  the 
United  States ;  that  a  title  under  an  unratified  treaty  is  at  most 
inchoate  and  contingent,  while  it  is  created  by  the  President 
alone,  in  which  respect  it  differs  from  any  title  created  by  act 
of  Congress ;  and  since  it  is  created  by  the  President  alone,  with- 
out the  support  of  law,  whether  in  legislation  or  a  ratified  treaty, 
the  employment  of  the  Navy  in  the  maintenance  of  the  Govern- 
ment there  is  without  any  excuse  of  national  defense,  as  also 
without  any  excuse  of  a  previous  declaration  of  war  by  Con- 
gress."25 

However,  other  Senators,  such  as  Harlan  (Iowa)  and  Morton 
(Indiana)  came  to  the  defense  of  the  President,  and  Sumner's 
resolution  was  laid  on  the  table  by  a  large  majority  (38-16), 26 
so  that  there  would  seem  to  be  some  point  to  Professor  Corwin's 
remark  about  Harlan 's  argument  that  it  "at  least  demonstrated 
the  futility  of  attempting  to  confine  the  President's  protective 
function  to  the  mere  duty  of  repelling  invasion  or  immediate 
physical  attack. ' ' 27 

President  Roosevelt's  action  in  1903  in  preventing  the  inter- 
ference of  Colombia  in  the  Panama  revolution  was  likewise  based 
on  the  ground  of  an  inchoate  interest  on  the  part  of  the  Uni- 
ted States  in  the  Panama  Canal  and  therefore  in  the  success 
of  the  revolution.28 

The  President  may  also  on  his  own  authority  undertake  mili- 

25  Cong.  Globe,  42  Cong.,  1  Sess.,  Pt.  II,  294. 
26/fetU,  329. 

27  The  President 's  Control  of  Foreign  Relations,  160.     President  JRoose- 
velt's  action  with  regard  to   Santo  Domingo  in  1905  was  similar  to  that 
of  President  Grant  in  that   the   contemplated  measures  were  undertaken 
even  after  a  treaty  authorizing  them  had  been  rejected.   Roosevelt's   ac- 
tion,  however,  was   not  based   on   the   doctrine   of   inchoate   interest,   but 
seems   to   be   more   properly   classified   under   the   policy   of   police    super- 
vision.   Infra,  54;    cf.  also  supra,  41-42. 

28  See    Jones,    Carribbean    Interests    of    the    United    States,    199-203; 
Roosevelt,   Autobiography,   553-569. 


50  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [50 

tary  measures  for  the  protection  of  American  rights  and  inter- 
ests abroad.29  This  power  was  exercised  in  1853  in  the  famous 
Koszta  incident,  when  Martin  Koszta,  a  native  of  Hungary  who 
had  become  an  American  declarant  (not  yet  fully  naturalized), 
but  who  had  been  seized  at  Smyrna  at  the  instigation  of  the  Aus- 
trian authorities,  was  released  through  the  vigorous  action  of  an 
American  naval  captain  in  training  his  guns  upon  the  Austrian 
vessel  on  which  Koszta  was  held.  The  incident  caused  consid- 
erable excitement  and  was  protested  by  the  Austrian  govern- 
ment; but  Captain  Ingraham's  action  was  sustained  by  public 
opinion,  by  Congress,  and  by  the  Executive,  Secretary  of  State 
Marcy  laying  down  the  principle  that  any  individual  "clothed 
with  our  national  character"  is  entitled  to  claim  the  protection 
of  this  government,  "and  it  may  respond  to  that  claim  without 
being  obliged  to  explain  its  conduct  to  any  foreign  power;  for 
it  is  its  duty  to  make  its  nationality  respected  by  other  nations 
and  respectable  in  every  quarter  of  the  globe. ' ' 30 

Another  demonstration  of  this  power  occurred  a  year  later 
(1854),  when  Greytown  (San  Juan),  in  Nicaragua,  was  bom- 
barded ' '  until  the  town  was  laid  in  ashes, ' '  in  default  of  repara- 
tion demanded  for  an  attack  on  the  United  States  consul.31  This 
action  was  approved  and  defended  before  Congress  by  President 
Pierce,32  and  later  upheld  by  the  courts,  Justice  Nelson  declar- 
ing that  it  is  to  the  President,  as  the  Executive  head  of  the  Na- 
tion, that  citizens  abroad  must  look  for  protection  of  person  and 
property,  and  that,  for  this  purpose,  "the  whole  Executive  power 
of  the  country  is  placed  in  his  hands,  under  the  Constitution, 
and  the  laws  passed  in  pursuance  thereof ;  and  different  Depart- 
ments of  government  have  been  organized,  through  which  this 
power  may  be  most  conveniently  executed,  whether  by  negotia- 
tion or  force  —  a  Department  of  State  and  a  Department  of  the 
Navy."  He  further  declared  that  the  duty  of  such  interposi- 
tion abroad,  for  the  protection  of  the  lives  or  property  of  the 

2»  Corwin,  op.  cit.,  142 ;  Boot,  Military  and  Colonial  Policy  of  the  Uni- 
ted States,  157-158. 

so  Rhodes,  History  of  the  United  States,  I,  416-419.  The  Supreme  Court 
also  referred  to  this  incident  with  approval  in  a  decision  rendered  some 
years  later.  In  re  N eagle,  135  U.  S.,  1,  64  (1890). 

si  Ehodes,  op.  cit.,  II,  9-10. 

32  Message  to  Congress,  Dee.  4,  1854.  Eichardson,  op.  cit.,  V,  280-284. 


51]  MILITARY    MEASURES    SHORT   OF    WAR  51 

citizen,  ''must,  of  necessity,  rest  in  the  discretion  of  the  Presi- 
dent."33 

The  attack  by  American  war  vessels  upon  the  Barrier  forts 
of  China  in  1856,  in  order  to  avenge  an  alleged  insult  to  the 
flag,34  undertaken  without  authority  of  Congress,  was  apparent- 
ly approved  even  by  the  cautious  Buchanan,  altho  further 
active  participation  in  a  military  expedition  into  Chinese  terri- 
tory was  declined  as  beyond  the  authority  of  the  President  alone 
to  undertake.  Secretary  Cass  thus  stated  the  position  of  the 
administration :  ' '  Our  naval  officers  have  the  right  —  it  is  their 
duty,  indeed —  to  employ  the  forces  under  their  command,  not 
only  in  self-defense,  but  for  the  protection  of  the  persons  and 
property  of  our  citizens  when  exposed  to  acts  of  lawless  outrage, 
and  this  they  have  done  both  in  China  and  elswhere,  and  will 
do  again  when  necessary.  But  military  expeditions  into  the 
Chinese  territory  can  not  be  undertaken  without  the  authority  of 
the  National  Legislature. ' ' 35 

President  Buchanan  also,  without  authority  from  Congress, 
ordered  a  naval  force  to  Cuban  waters  with  directions  "to  pro- 
tect all  vessels  of  the  United  Statesmen  the  high  seas  from  search 
or  detention  by  the  vessels  of  war  of  any  other  nation. ' '  A  con- 
flict with  Great  Britain  was  avoided  only  by  the  latter 's  aban- 
donment of  her  claim  to  the  right  of  visit  and  search  in  time 
of  peace.36 

Even  the  qualification  upon  the  President's  powers  admitted 
by  Secretary  Cass  in  1857  was  abandoned  in  1900,  when  Presi- 
dent McKinley,  without  any  express  authorization  from  Con- 
gress, sent  a  naval  force  under  Admiral  Kempff  and  an  army 
of  about  5000  men  under  General  Chaffee  to  China,  not  merely 

334  Blatchford,  451,  454,  quoted  in  Corwin,  op.  cit.,  144. 

s*  For  account  of  this  affair,  see  Foster,  American  Diplomacy  in  the 
Orient,  225-227. 

SB  Cass  to  Lord  Napier,  Apr.  10,  1857.  Moore 's  Digest,  VII,  164. 

36  Richardson,  op.  cit.,  V,  507.  Buchanan  was,  however,  curiously  in- 
consistent, deeming  it  necessary  to  appeal  to  Congress  for  authority  to 
protect  American  citizens  in  Nicaragua,  New  Grenada,  and  Mexico,  and 
to  keep  the  Panama  and  Tehuantepec  routes  of  transit  open  and  safe  for 
them.  "The  executive  government  of  this  country,"  he  said,  "in  its 
intercourse  with  foreign  nations  is  limited  to  the  employment  of  diplo- 
macy. When  that  fails  it  can  proceed  no  further.  It  can  not  legitimately 
resort  to  force  without  the  direct  authority  of  Congress,  except  in  re- 


52  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [52 

for  the  purpose  of  rescuing  and  protecting  the  lives  and  property 
of  American  citizens  in  China,  but  also  to  cooperate  with  the 
forces  of  the  other  Powers  in  avenging  and  punishing  the  mur- 
der of  the  representatives  of  these  Powers  that  had  been  killed 
during  the  Boxer  uprising.  Altho  the  ensuing  campaign 
involved  hard  fighting  and  many  casualties,  the  President  said 
that  our  declared  aims  "involved  no  war  against  the  Chinese 
nation.  We  adhered  to  the  legitimate  office  of  rescuing  the  im- 
periled legation,  obtaining  redress  for  wrongs  already  suffered, 
securing  wherever  possible  the  safety  of  American  life  and  prop- 
erty in  China,  and  preventing  a  spread  of  the  disorders  or  their 
recurrence. ' w 

A  still  more  recent  example  of  this  exercise  of  the  President's 
power  is  the  action  of  President  Wilson  in  April,  1914,  in  or- 
dering a  force  of  sailors  and  marines  to  capture  Vera  Cruz 
by  way  of  reparation  for  Huerta  's  affront  to  the  flag  of  the  Uni- 
ted States.  This  measure,  characterized  by  an  eminent  histor- 
ian as  "an  act  of  war ' '  which  looked  to  Latin- American  countries 
like  "the  beginning  of  a  war  of  conquest"  and  which  was 
"fiercely  resented  in  Mexico,"  was  undertaken  without  author- 
ity from  Congress,38  the  city,  moreover,  being  occupied  for  a 
period  of  seven  months  (until  November  23,  1914)  by  an  army 
of  6000  men  under  General  Funston.39 

The  power  of  the  President  to  employ  the  land  and  naval 
forces  on  his  own  authority,  whether  for  the  purpose  of  protect- 

sisting  and  repelling  hostile  attacks.  .  .  Without  the  authority  off 
Congress  the  Executive  can  not  .  .  .  ,  without  transcending  his  con- 
stitutional power,  direct  a  gun  to  be  fired  into  a  port  or  land  a  seaman  or 
marine  to  protect  the  lives  of  our  countrymen  on  shore  or  to  obtain  re- 
dress for  a  recent  outrage  on  their  property.  .  .  Without  the  au- 
thority of  Congress  the  President  can  not  fire  a  hostile  gun  in  any  case 
except  to  repel  the  attacks  of  an  enemy."  Richardson,  op.  tit.,  V,  516, 
539,  570. 

37  Message  to  Congress,  Dec.  3,  1900.  For.  Eel.  1900,  xiv.  For  an  ac- 
count of  the  expedition,  see  Boot,  Military  and  Colonial  Policy  of  the  Uni- 
ted States,  333,  336-347;  cf.  Taft,  Our  Chief  Magistrate  and  His  Powers, 
114-115. 

ss  Vera  Cruz  was  captured  Apr.  21,  1914.  The  next  day  Congress  passed 
a  resolution  declaring  the  use  of  troops  justifiable  and  disclaiming  any 
purpose  to  make  war.  38  Stat.  at  L.,  770. 

39Qgg,  National  Progress,  293-295. 


53]  MILITARY    MEASURES    SHORT   OF    WAR  53 

ing  the  so-called  "inchoate  interests"  and  honor  of  the  United 
States,  or  the  rights  and  property  of  American  citizens  abroad, 
has  thus  been  demonstrated  in  actual  practise  again  and  again, 
and  seems  also  to  have  been  approved  by  Congress,  by  the  courts, 
and  by  public  opinion.  It  seems  scarcely  necessary  to  suggest 
the  possibilities  of  international  complications  and  conflicts  that 
may  result  from  an  unwise  exercise  of  this  power,  and  hence  the 
enormous  responsibility  for  the  peace  of  the  United  States  that 
rests  in  this  way  upon  the  shoulders  of  the  President. 

But  in  addition  to  these  powers  of  protection,  which  are, 
after  all,  inherent  in  government,  a  more  recent  development  of 
American  foreign  policy  has  vested  in  the  President  considerable 
power  with  respect  to  intervention  and  police  supervision  over 
the  affairs  of  other  nations.  The  so-called  "zone  of  the  Carib- 
bean," because  of  its  proximity  and  strategic  importance  to  the 
United  States,  the  unsettled  character  of  the  governments  in 
that  zone,  and  the  inclination  of  the  United  States  under  the 
Monroe  Doctrine  to  look  with  disfavor  upon  action  by  any  for- 
eign power,  is  now  considered  as  being  under  the  general  police 
supervision  of  the  United  States ;  the  policy  of  this  country  hav- 
ing undergone  a  gradual  change  from  one  of  sympathetic  inter- 
est but  absolute  non-interference  in  the  affairs  of  these  Carib- 
bean states  to  one  of  direct  and  active  intervention  in  their  in 
ternal  affairs.40 

This  power  of  intervention  and  police  supervision  was  prob 
ably  first  exercised  by  President  Cleveland  in  1885,  when  dur- 
ing the  course  of  a  civil  war  in  Colombia,  he  sent  troops  to  keep 
open  the  transit  across  the  Isthmus  of  Panama.  Altho  this 
action  was  taken  under  authority  of  a  provision  (Article  35)  in 
the  treaty  of  1846  with  Colombia,  its  execution,  as  the  President 
informed  Congress,  "necessarily  involved  police  control  where 
the  local  authority  was  temporarily  powerless,  but  always  in 
aid  of  the  sovereignty  of  Colombia. ' ' 41 

The  doctrine  upon  which  the  exercise  of  such  police  control 

40  Jones,    Caribbean   Interests   of   the   United   States,   17-23.      See   also 
several  articles  by  P.  M.  Brown  —  "Our  Caribbean  Policy,"  Proc.  Acad. 
Pol.    Set.,    VII,    418-422;     "American    Diplomacy    in    Central    America," 
Am.  Pol.  Sci.  Eev.,  VI,   supp.,   152-163 ;    ' '  American  Intervention  in  Cen- 
tral America,"  Am.  Jour.  Race  Development,  IV,  409-426. 

41  Message  to  Congress,  Dee.  8,  1885.    Richardson,  op.  cit.,  VIII,  326. 


54  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [54 

might  be  justified  was  laid  down  by  President  Roosevelt  in  his 
message  to  Congress,  December  6,  1904,  when  he  said :  ' '  Chron- 
ic wrongdoing,  or  an  impotence  which  results  in  a  general  loos- 
ening of  the  ties  of  civilized  society,  may  in  America,  as  else- 
where, ultimately  require  intervention  by  some  civilized  nation, 
and  in  the  Western  Hemisphere  the  adherence  of  the  United 
States  to  the  Monroe  Doctrine  may  force  the  United  States,  how- 
ever reluctantly,  in  flagrant  cases  of  such  wrongdoing  or  im- 
potence, to  the  exercise  of  an  international  police  power. ' ' 42 

The  doctrine  here  laid  down  has  since  been  developed  into  a 
definite  policy  largely  through  numerous  military  measures 
undertaken  on  the  sole  authority  of  the  President.  Thus,  in 
1905,  even  before  he  entered  into  the  executive  agreement  with 
Santo  Domingo  already  referred  to,43  President  Roosevelt  di- 
rected United  States  naval  forces  to  interfere  and  prevent  any 
fighting  in  that  country  which  might  menace  the  custom- 
houses.44 United  States  marines  have  since  been  landed  on  sev- 
eral occasions  both  in  Hayti  and  Santo  Domingo  to  preserve 
order  and  to  maintain  the  customs  service;  since  1912  the  lat- 
ter country  has  been  favored  with  at  least  one  visit  a  year  from 
United  States  cruisers ;  and  in  1916  a  military  occupation  of  the 
island  was  established  that  has  apparently  not  yet  been  aban- 
doned (June,  1920). *5 

42  For.  Eel.  1904,  xli. 

43  Supra,  41-42,  49n. 

44 ' '  Santo  Domingo  had  fallen  into  such  chaos  that  once  for  some  weeks 
there  were  two  rival  governments  in  it,  and  a  revolution  was  being  car- 
ried on  against  each.  .  .  The  situation  had  become  intolerable  by  the 
time  that  I  interfered.  There  was  a  naval  commander  in  the  waters  whom 
I  directed  to  prevent  any  fighting  which  might  menace  the  custom-houses. 
He  carried  out  his  orders,  both  to  his  and  my  satisfaction,  in  thorough- 
going fashion.  On  one  occasion,  when  an  insurgent  force  threatened  to 
attack  a  town  in  which  Americans  had  interests,  he  notified  the  com- 
manders on  both  sides  that  he  would  not  permit  any  fighting  in  that  town, 
but  that  he  would  appoint  a  certain  place  where  they  could  meet  and  fight 
it  out,  and  that  the  victors  should  have  the  town.  They  agreed  to  meet 
his  wishes,  the  fight  came  off  at  the  appointed  place,  and  the  victors, 
who  if  I  remember  rightly  were  the  insurgents,  were  given  the  town. ' ' 
Roosevelt,  Autobiography,  549. 

45  Ogg,  op.  <At.,  261 ;  Am.  Jour.  Int.  Law,  XI,  394-399 ;  see  also  infra, 
note  53.  Since  the  above  was  written,  there  has  been  much  severe  criticism 
of  the  continued  American  occupation  of  Hayti.  See  especially  a  series 


55]  MILITARY   MEASURES   SHORT   OF   WAR  55 

In  February,  1907,  during  the  course  of  a  war  between  Nic- 
aragua and  Honduras,  American  warships  actively  intervened  in 
order  to  protect  life  and  property  from  needless  destruction  and 
to  prevent  the  spreading  of  the  war,  and  the  American  charge 
(Philip  Marshall  Brown)  even  assumed  temporary  authority  in 
Honduras  when  the  government  fled.46  In  1909-1910,  by  the 
use  of  naval  vessels  and  marines,  the  resignation  and  flight  of 
an  obnoxious  president  of  Nicaragua  (Zelaya)  was  forced  and 
the  success  of  a  revolution  assured;47  while  in  1912  and  1914, 
United  States  marines  again  actively  intervened  in  Nicaragua, 
but  on  these  occasions  on  the  side  of  the  government,  to  put  down 
revolutions  that  might  otherwise  have  succeeded.48  In  Hon- 
duras, the  joint  intervention  of  American  and  British  marines 
prevented  fighting  between  the  two  factions  in  that  country, 
and  secured  the  election  of  a  provisional  president  agreeable 
to  both  factions  ;49  while  only  recently  an  American  naval  force 
was  again  landed  in  that  country  to  preserve  order  during  a 
change  of  government.50 

In  all  these  numerous  instances  of  intervention  and  police 
supervision  in  the  Caribbean  zone,  the  use  of  the  marines  has 
been  so  common  as  to  warrant  the  suggestion  of  a  new  consti- 
tutional principle,  that  the  landing  of  marines  may  be  consid- 
ered as  a  "mere  local  police  measure,"  while  the  use  of  regulars 
for  the  same  purpose  would  be  an  act  of  war.51  Intervention  is, 
however,  defined  in  a  recent  official  publication  as  "an  inter- 
ference by  a  nation  in  the  affairs  of  another  without  the  inten- 

of  articles  by  James  Weldon  Johnson  in  The  Nation,  Aug.  28,  Sept.  4,  11, 
1920. 

46  For.  Eel.  1907,  II,  627-628 ;  P.  M.  Brown,  op.  cit.,  in  Am.  Jour.  Race 
Development. 

"For.  Eel.  1909,  452-459;  ibid.,  1910,  738-767. 

48  Jones,  op.  cit.,  176-178;  Ogg,  op.  cit.,  261-262.     President  Taft  men- 
tions the  intervention  of  1912  as  "the  landing  of  marines  and  quite  a 
campaign,  which  resulted  in  the  maintenance  of  law  and  order  and  the 
elimination  of  the  insurrectos. "     He  says  this  was  "not  an  act  of  war, 
because  it  was  done  at  the  request  and  with  the  consent  of  the  lawful  au- 
thorities of  the  territory  where  it  took  place."  Owr  Chief  Magistrate  and 
His  Powers,  96. 

49  P.  M.  Brown,  op.  cit.,  in  Am.  Jour.  Eace  Development,  Am.  Pol.  Sd. 
Eev. 

so  N  Y.  Times,  Sept.  12,  1919. 

si  See  Taft,  Our  Chief  Magistrate  and  His  Powers,  95. 


56  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [56 

tion  of  waging  war.  It  is  commonly  defended  as  a  police  meas- 
ure by  the  intervening  power,  but  is  often  followed  by  war, 
and  may  always  be  regarded  by  the  second  power  as  an  act  of 
war. ' ' 52  Hence,  even  tho  the  suggestion  of  a  constitutional 
principle  may  be  accepted  in  the  United  States  as  justifying  the 
President  in  his  frequent  resort  to  such  measures  of  police  con- 
trol in  the  zone  of  the  Carribbean,  as  it  apparently  has  been  ac- 
cepted, this  exercise  of  the  President's  power  may  not  be  so 
readily  accepted  by  the  other  countries  concerned,  but  may,  on 
the  other  hand,  be  resented  by  them  and  lead  to  serious  difficul- 
ties and  entanglements,  if  not  to  actual  war.53 

Kecent  events  have  also  shown  the  possibilities  involved  in  an 
extension  of  these  powers  of  intervention  and  police  supervision, 
even  beyond  the  zone  of  the  Carribbean.  The  landing  of  United 
State  bluejackets  at  Trau  in  September,  1919,  in  order  to  pre- 
vent a  conflict  between  the  Italians  and  the  Serbs,  altho  ap- 
parently done  at  the  request  of  the  Italian  authorities,54  was 
entirely  without  the  previous  knowledge  or  consent  of  Congress 
or  the  Senate. 

This  use  of  American  forces  for  police  purposes  in  Dal- 
matia,  and  the  report  that  troops  were  also  to  be  sent  to  super- 
vise the  plebiscites  in  Silesia  and  to  preserve  order  in  Armenia 
and  elswhere,55  aroused  a  storm  of  criticism  in  Congress.  The 
action  in  Dalmatia  was  denounced  as  against  law  and  preced- 

52  War  Cyclopedia  (1st  ed.),  138. 

ss  Cf.  Jones,  op.  cit.,  190.  In  the  fall  of  1919,  a  commission  from 
Santo  Domingo  issued  a  plea  for  self-government  and  the  abandonment 
of  the  American  military  government;  while  at  about  the  same  time  the 
Spanish  government  transmitted  to  Washington  a  letter  from  the  heads  of 
all  the  Spanish  parliamentary  parties,  suggesting  that  the  time  had  come 
for  a  termination  of  the  American  military  occupation  of  that  island. 
N.  T.  Times,  Sept.  11,  12,  1919. 

54  See  statement  of  Admiral  Knapp,  transmitted  by  Secretary  Daniels 
to  the  Senate,  Oct.  2,  1919,  in  response  to  a  Senate  resolution.    Z&td.,  Oct. 
3,  1919. 

55  N.  T.  Times  Current  Hist.  Mag.,  XI,  225-226   (Nov.,  1919).  Accord- 
ing to  press  reports  a  force  of  American  troops  was  sent  to  Coblenz  with 
a  view  to  their  possible  use   ultimately  to  help   police  the   plebiscite  in 
Upper  Silesia;   but  Secretary  of  War  Baker  announced  that  these  troops 
would  remain  at  Coblenz  as  a  part  of  the  garirson  there,  unless  the  Sen- 
ate should  ratify  the  treaty  and  thus  make  American  participation  in  the 
plebiscite  strictly  legal.  See  N.  Y.  Times,  Nov.  21,  1919. 


57]  MILITARY    MEASURES    SHORT   OF   WAR  57 

ent,  and  Senator  Sherman  (Illinois)  introduced  a  resolution  de- 
claring that  the  assignment  of  foreign  territory  to  be  policed 
or  guarded  by  United  States  forces  was  beyond  the  power  of  the 
Supreme  War  Council  or  the  Executive,  without  the  consent  of 
the  Senate.50 

Such  a  conception  of  the  President's  power  with  regard  to  the 
use  of  the  armed  forces  might  have  some  weight,  had  the  action 
under  criticism  been  taken  in  time  of  peace.  Under  the  cir- 
cumstances, however,  of  a  continuing  state  of  war,  the  correct 
view  was  undoubtedly  stated  by  Senator  Hitchcock  (Nebraska) 
when  he  said  that  the  action  taken  with  regard  to  the  Dalma- 
tian coast  was  within  the  war  powers  of  the  President  and  dele- 
gated by  him  to  the  Supreme  War  Council.57  The  failure  of 
the  Senate  to  take  any  action  on  the  Sherman  resolution  would 
seem  to  indicate  its  approval  of  this  view.  The  incident  serves 
at  least  to  illustrate  the  possibilities  involved  in  an  extension  of 
the  sphere  within  which  the  President  may  undertake  these  mili- 
tary measures  without  the  authority  of  Congress. 


56  N.  Y.  Times,  Sept.  27,  30,  1919. 
ST  Ibid.,  Sept.  30,  1919. 


CHAPTER  IV 

POWER  OF  DEFENSE 

A  formal  declaration  is  not  necessary  to  constitute  a  state  of 
war,  and  is  a  comparatively  unimportant  factor  in  dating  the 
beginning  of  a  war,  because  it  does  not  necessarily  precede  hos- 
tilities, nor  has  it  in  fact  often  done  so.  Until  recently,  a  formal 
declaration  of  war  was  not,  as  a  matter  of  international  law, 
necessary  or  usual.1  Most  wars  during  the  eighteenth  and  nine- 
teenth centuries  were  fought  "under  the  rule  of  a  word  and  a 
blow,  with  the  blow  coming  first  and  the  word  possibly  left  un- 
said."2 A  declaration  of  war,  says  Woolsey*3  is  "a  warning 
issued  by  a  state  to  its  own  people,  or  to  the  neutral,  that  war 
has  begun,  and  not  a  warning  to  the  enemy  that  war  will  begin 
at  a  certain  future  date.  Marking  thus  a  status  already  exist- 
ing, it  cannot  itself  originate  that  status.  The  outbreak  of  war 
gives  rise  to  the  declaration,  not  the  declaration  to  the  outbreak. 
It  is  the  fact  of  violence,  then,  and  not  the  declaration  of  a  stat- 
us, upon  which  we  must  really  fix  our  eyes,  if  we  should  ask 
when  war  begins." 

The  question  then  arises,  under  what  circumstances  may  a 
war  be  begun  before  a  formal  declaration  is  made,  or  even  with- 
out a  formal  declaration,  and  with  what  branch  of  the  govern- 
ment the  power  rests  to  begin  such  a  war. 

Authorities  agree  that  the  power  to  begin  an  offensive  war, 
or  a  war  of  aggression,  rests  in  the  United  States  only  with 
Congress,  and  should  properly  be  preceded  by  a  declaration  made 

18.  E.  Baldwin,  in  Am.  Jour.  Int.  Law,  XII,  1;  Woolsey,  Internation- 
al Law,  sec.  120;  Moore's  Digest  of  International  Law,  VII,  171. 

2  For  a  list  of  wars  begun  without  a  declaration,  see  Am.  Jour.  Int.  Law, 
II,  57-62. 

3  T.    S.   Woolsey,    "The   Beginnings   of   War,"  Proceedings,  Am.   Pol. 
Sci.  Assn.,  I,  54-68. 

58 


59]  POWER  OF  DEFENSE  59 

by  that  body.*  The  Constitution  establishes  the  mode  in  which 
this  government  shall  commence  wars  of  its  seeking,  but  the 
Constitution  has  no  power  to  prescribe  the  manner  in  which  oth- 
ers should  begin  war  against  us.  There  is  in  every  nation  an  in- 
herent power  of  self-defense,  and  it  is  to  be  presumed  that, 
tho  the  power  to  declare  a  war  is  by  our  Constitution  clearly 
vested  in  Congress,  in  the  absence  of  such  a  declaration  the  Con- 
stitution does  not  leave  the  nation  powerless  for  defense  against 
attack.  Hence  it  follows,  as  Whiting  says,  "that  when  war  is 
commenced  against  this  country  by  aliens  or  citizens,  no  declara- 
tion of  war  by  the  government  is  necessary. ' ' 5 

Whiting  also  contends  that  the  power  to  begin  and  wage  a 
war  of  defense  rests  clearly  with  the  President.  "The  fact 
that  war  is  levied  against  the  United  States,"  he  says,  "makes 
it  the  duty  of  the  President  to  call  out  the  army  or  navy  to 
subdue  the  enemy,  whether  foreign  or  domestic.  .  .  If  the 
commander-in-chief  could  not  call  out  his  forces  to  repel  an  in- 
vasion unless  the  Legislative  department  had  previously  made  a 
formal  declaration  of  war,  a  foreign  enemy,  during  a  recess  of 
Congress,  might  send  out  its  armed  cruisers  to  sweep  our  com- 
merce from  the  seas,  or  it  might  cross  our  borders  and  march, 
unopposed,  from  Canada  to  the  Gulf  before  a  majority  of  our 
Representatives  could  be  convened  to  make  that  declaration." 
He  claims  that  the  Constitution,  which  gives  the  Legislature  au- 
thority to  declare  war  whenever  initiated  by  the  United  States, 
also  imposes  upon  the  President  the  duty,  as  commander-in- 
chief,  "to  engage  promptly  and  effectually,  in  war,  or,  in  other 
words,  to  make  the  United  States  a  belligerent  nation  without  a 
declaration  of  war  or  any  other  act  of  Congress,  whenever  he 
is  legally  called  upon  to  suppress  rebellion,  repel  invasion,  or  to 
execute  the  laws  against  armed  public  resistance  thereto. ' ' 6  This 

*  Whiting,  War  Powers  under  the  Constitution,  39;  Burgess,  Political 
Science  and  Comparative  Constitutional  Law,  II,  261;  Taft,  Our  Chief 
Magistrate  and  His  Powers,  95;  Prize  Cases,  2  Black,  635,  668  (1862). 

5  Whiting,  op.  cit.,  39 ;   cf.  amendment  proposed  by  the  Hartford  Con- 
vention of  1814,  providing  for  a  two-thirds  vote  of  both  houses  to  declare 
war  or  authorize  hostilities,  ' '  except  such  acts  of  hostility  be  in  defense 
of   the   territories    of   the   United    States   when    actually    invaded."    The 
Federalist  (Ford  ed.),  Appendix,  689. 

6  Whiting,  op.  cit.,  39-40 ;  cf.  Birkhimer,  Military  Government  and  Mar- 
tial Law  (2nd  ed.),  48. 


60  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [60 

view  is  supported  by  Birkhimer,7  who  admits  that  a  formal  dec- 
laration of  war  can  be  made  only  by  Congress,  but  says  that  it 
is  necessary  sometimes  to  prosecute  hostilities  without  such  a 
declaration,  and  that  the  President  then  must  act,  for  the  time 
being,  at  least,  independently  of  Congress.  "When  the  authori- 
ties of  the  Union  are  assailed,  either  by  foreign  foes,  .  .  or  by 
domestic  ones,  .  .  it  is  the  duty  of  the  President  to  repel 
force  with  force  without  waiting  for  any  formal  declaration." 

The  power  of  the  President  to  begin  and  carry  on  a  defensive 
war  without  a  declaration  by  Congress  is  also  vigorously  upheld 
by  the  Supreme  Court  of  the  United  States.  In  handing  down 
the  decision  of  the  court  in  the  famous  Prize  Cases,8  Justice 
Grier,  after  admitting  the  full  constitutional  power  of  Congress 
to  declare  a  national  or  foreign  war,  said :  ' '  The  Constitution 
confers  on  the  President  the  whole  Executive  power.  He  is  bound 
to  take  care  that  the  laws  be  faithfully  executed.  He  is  Com- 
mander-in-Chief  of  the  Army  and  Navy  of  the  United  States, 
and  of  the  militia  of  the  several  states  when  called  into  the  actual 
service  of  the  United  States.  He  has  no  power  to  initiate  or 
declare  a  war  either  against  a  foreign  nation  or  a  domestic  State. 
But  by  the  Acts  of  Congress  of  February  28th,  1795,  and  3d  of 
March,  1807,  he  is  authorized  to  call  out  the  militia  and  use  the 
military  and  naval  forces  of  the  United  States  in  case  of  in- 
vasion by  foreign  nations,  and  to  suppress  insurrection  against 
the  government  of  a  State  or  of  the  United  States.  If  a  war  be 
made  by  invasion  of  a  foreign  nation,  the  President  is  not  only 
authorized  but  bound  to  resist  force  by  force.  He  does  not  in- 
itiate the  war,  but  is  bound  to  accept  the  challenge  without 
waiting  for  any  special  legislative  authority.  And  whether 
the  hostile  party  be  a  foreign  invader,  or  States  organized  in 
rebellion,  it  is  none  the  less  a  war,  although  the  declaration  of  it 
be  'unilateral.'  "9 

7  Military  Government  and  Martial  Law,  47 ;  cf.  also  Chambrun,  The 
Executive  Power,  120. 

82  Black,  635  (1862). 

»  Prise  Cases,  2  Black,  635,  668  (1862).  Cf.  Talbot  v.  Johnson,  3  DalL, 
133,  160  (1795):  "War  can  alone  be  entered  into  by  national  authority; 
it  is  instituted  for  national  purposes,  and  directed  to  national  ob- 
jects. .  .  Even  in  the  case  of  one  enemy  against  another  enemy,  there- 
fore, there  is  no  color  of  justification  for  any  hostile  act,  unless  it  be 
authorized  by  some  act  of  the  government  giving  the  public  constitution- 
al sanction  to  it." 


61]  POWER  OF  DEFENSE  61 

That  defensive  wars  are  clearly  contemplated  by  the  Con- 
stitution is  shown  by  the  provision  which  gives  to  Congress  the 
power  "to  provide  for  calling  forth  the  militia  to  execute  the 
laws  of  the  Union,  suppress  insurrections,  and  repel  inva- 
sions. ' ' 10  Under  that  provision,  Congress  has,  by  the  acts  re- 
ferred to  in  the  Supreme  Court  decision,  and  other  acts,  vested 
the  President  with  authority  to  call  out  and  use  the  militia  in 
the  cases  contemplated,  and  in  that  sense  wage  a  defensive  war 
without  further  declaration  by  Congress. 

The  Supreme  Court  need  not  have  rested  its  case,  however, 
solely  on  those  Acts  of  Congress,  but  might  have  gone  back  to 
the  language  and  intent  of  the  Constitution  itself.  The  action 
of  the  Convention  of  1787  is  significant  in  this  connection.  The 
Committee  on  Detail  had  reported  a  clause  giving  to  Congress 
the  power  "to  make  war."11  During  the  discussion  over  this 
proposition,  it  was  suggested  that  the  wording  of  the  clause  gave 
Congress  practically  unlimited  control  over  all  the  operations  of 
war.  Hence  Madison  and  Gerry  moved  to  strike  out  the  word 
"make"  and  insert  "declare,"  with  the  avowed  purpose  of 
"leaving  to  the  Executive  the  power  to  repel  sudden  attacks."  12 
The  suggested  change  in  language  was  adopted  with  little  op- 
position, and  there  would  here  seem  to  be  some  constitutional 
sanction  for  the  power  of  the  President  to  wage  defensive  wars 
without  direct  authorization  from  Congress. 

That  power  of  the  President  is  now  at  least  a  generally  recog- 
nized and  well  established  principle  of  American  constitutional 
law,  the  validity  of  which  was  vigorously  asserted  in  1907  by 
our  delegates  at  the  Hague  Conference.  When  the  proposal  was 
made  for  an  article  requiring  that  hostilities  should  not  begin 
without  a  previous  warning,  in  the  form  of  a  declaration  of  war 
or  of  an  ultimatum  accompanied  by  a  conditional  declaration  of 
war,  the  American  delegation  expressed  its  entire  sympathy  with 
the  purport  of  the  article.  It  called  attention,  however,  to  the 
fact  that  Congress  under  the  Constitution  had  exclusive  power  to 
declare  war,  and  that  the  delegation  could  enter  into  no  agree- 

10  Constitution,  Art.  I,  Sec.  8,  Cl.  15. 

11  Madison's  Journal  (Hunt  ed.),  II,  82. 

12  Ibid.,  188. 


62  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [62 

ment  to  modify  that  power  in  any  way.  The  statement  of  the 
delegation  then  went  on  to  say :  ' '  While  this  is  true  as  to  aggres- 
sive military  operations,  it  is  proper  to  say,  however,  that  it  has 
been  the  unbroken  practise  of  the  Government  of  the  United 
States  for  more  than  a  century  to  recognize  in  the  President,  as 
the  Commander-in-Chief  of  the  constitutional  land  and  naval 
forces,  full  power  to  defend  the  territory  of  the  United  States 
from  invasion,  and  to  exercise  at  all  times  and  in  all  places  the 
right  of  national  self-defense."  The  delegation  announced  its 
willingness  to  support  a  proposition  favoring  a  formal  declara- 
tion of  intent  to  engage  in  hostilities,  providing  it  were  nonman- 
datory  in  character.13 

The  power  of  the  President  to  wage  a  defensive  war  without 
a  formal  declaration  and  without  specific  authorization  by  Con- 
gress is  thus,  according  to  all  authority,  clearly  granted,  if  not 
in  so  many  words,  at  least  by  implication  and  the  inherent  pur- 
pose of  the  Constitution.  The  questions  still  remain  as  to  what 
constitutes  a  defensive  war,  and  to  what  extent  the  President 
may  exercise  these  powers  of  defense.  They  are  best  answered 
by  some  references  to  history. 

President  Washington  had  appointed  General  Wayne  to  suc- 
ceed St.  Clair  in  command  of  the  western  department,  and  in 
the  spring  of  1794  Wayne  was  ready  to  move  against  the  Indians. 
Meanwhile,  the  British  had  established  a  fort  at  the  rapids  of 
the  Miami,  twenty  miles  within  American  territory,  near  which 
the  Indians  took  their  stand.  The  action  of  the  British  was, 
of  course,  entirely  unjustified,  and  technically  constituted  an 
invasion  of  American  territory ;  but  it  is  not  clear  that  any  ag- 
gressive act  of  war  was  intended.  Washington  recognized  that 
an  attempt  to  dislodge  them  would  probably  bring  on  a  conflict, 
which  he  was  especially  anxious  to  avoid.  He  seemed,  however, 
to  have  no  doubts  as  to  his  power  in  that  regard,  for,  after  weigh- 
ing carefully  the  expediency  of  such  action,  and  without  con- 
sulting Congress,  the  following  instructions  were  issued  to 
Wayne  by  General  Knox,  the  Secretary  of  War:  "If,  therefore, 
in  the  course  of  your  operations  against  the  Indian  enemy,  it 
should  become  necessary  to  dislodge  the  party  at  the  rapids  of 

is  See  article  by  George  B.  Davis,  ' '  The  Amelioration  of  the  Eules  of 
War  on  Land,"  in  Am.  Jour.  Int.  Law,  II,  63-77. 


63]  POWER  OF  DEFENSE  63 

the  Miami,  you  are  hereby  authorized,  in  the  name  of  the  Presi- 
dent of  the  United  States,  to  do  it. ' ' 14  Fortunately,  Wayne  was 
able  to  defeat  the  Indians  without  becoming  officially  involved 
with  the  British,  and  a  conflict  was  for  the  time  being  averted. 

The  question  of  the  extent  of  the  President's  powers  in  the 
case  of  a  war  begun  by  another  nation  was  more  clearly  raised 
in  Jefferson's  administration,  with  regard  to  Tripoli.  Tripoli 
had  declared  war  on  the  United  States  because  of  the  latter 's 
failure  to  comply  with  demands  which  Jefferson  said  were  "un- 
founded either  in  right  or  in  compact."  Jefferson  apparently 
had  no  doubt  of  his  power  to  take  certain  defensive  measures 
without  special  authority  from  Congress,  for  he  immediately 
despatched  a  small  squadron  of  frigates  into  the  Mediterranean, 
with  orders  to  protect  our  commerce  against  attack.  A  conflict 
ensued,  as  a  result  of  which  one  of  the  Tripolitan  cruisers  was 
captured  together  with  what  remained  of  her  crew.  But  further 
than  to  fight  in  the  strictest  defense,  Jefferson  felt  that  he  had 
no  constitutional  authority,  and  so,  as  he  explained  in  his  mes- 
sage to  Congress,  "Unauthorized  by  the  Constitution,  without 
the  sanction  of  Congress,  to  go  beyond  the  line  of  defense,  the 
vessel,  being  disabled  from  committing  further  hostilities,  was 
liberated  with  its  crew.  The  Legislature  will  doubtless  consider 
whether,  by  authorizing  measures  of  offense  also,  they  will  place 
our  force  on  an  equal  footing  with  that  of  its  adversaries.  I 
communicate  all  material  information  on  this  subject,  that  in 
the  exercise  of  this  important  function  confided  by  the  Consti- 
tution to  the  Legislature  exclusively  their  judgment  may  form 
itself  on  a  knowledge  and  consideration  of  every  circumstance 
of  weight."15 

It  is  not  strange  that  such  a  timid  attitude  should  have  arous- 
ed the  wrath  of  Hamilton,  who  attacked  the  President's  inter- 
pretation of  his  war  powers  in  his  usual  vigorous  style.  He 
called  it  a  "very  extraordinary  position"  that,  tho  Tripoli 
had  made  a  formal  declaration  of  war  against  the  United  States 
and  had  performed  acts  of  actual  hostility,  yet  there  was  no  pow- 
er, for  want  of  the  sanction  of  Congress,  to  capture  and  detain 
her  crews.  That  position  meant  nothing  less,  he  said,  than  ' '  that 
between  two  nations  there  may  exist  a  state  of  complete  war  on 

n  Fish,  American  Diplomacy,  83-84. 

is  Richardson,  Messages  and  Papers  of  the  Presidents,  I,  327. 


64  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [64 

the  one  side  —  of  peace  on  the  other."  Such  a  position  was  to 
him  ridiculous.  ' '  It  is  impossible, ' '  he  maintained,  ' '  to  conceive 
the  idea,  that  one  nation  can  be  in  full  war  with  another,  and 
this  other  not  in  the  same  state  with  respect  to  its  adversary. 
The  moment  that  two  nations  are,  in  an  absolute  sense,  at  war, 
the  public  force  of  each  may  exercise  every  act  of  hostility, 
which  the  general  laws  of  war  authorize,  against  the  persons  and 
property  of  the  other.  As  respects  this  conclusion,  the  distinc- 
tion is  only  material  to  discriminate  the  aggressing  nation  from 
that  which  defends  itself  against  attack.  The  war  is  offensive 
on  the  part  of  the  state  which  makes  it ;  on  the  opposite  side  it 
is  defensive ;  but  the  rights  of  both,  as  to  the  measures  of  hostil- 
ity, are  equal."  Hamilton  then  went  on  to  explain  the  consti- 
tutional phrase  granting  to  Congress  the  power  to  declare  war, 
' '  the  plain  meaning  of  which, ' '  he  said,  ' '  is  that  it  is  the  peculiar 
and  exclusive  province  of  Congress,  when  the  nation  is  at  peace, 
to  change  that  state  into  a  state  of  war,  whether  from  calcula- 
tions of  policy,  or  from  provocations,  or  injuries  received:  in 
other  words,  it  belongs  to  Congress  only,  to  go  to  War.  But 
when  a  foreign  nation  declares,  or  openly  and  avowedly  makes 
war  upon  the  United  States,  they  are  then  by  that  very  fact  al- 
ready at  war,  and  any  declaration  on  the  part  of  Congress  is 
nugatory;  it  is  at  least  unnecessary.  This  inference  is  clear 
in  principle,  because  it  is  self-evident,  that  a  declaration  by  one 
nation  against  another,  produces  at  once  a  complete  state  of  war 
between  both,  and  that  no  declaration  on  the  other  side  can  at 
all  vary  their  relative  situation ;  and  in  practice,  it  is  well  known, 
that  nothing  is  more  common  than  when  war  is  declared  by  one 
party,  to  prosecute  mutual  hostilities  without  a  declaration  by 
the  other."16 

Congress  felt  somewhat  as  did  Hamilton,  that  a  declaration  of 
war  would  be  a  useless  formality  against  a  horde  of  pirates,  as 
the  Barbary  Powers  were  considered;  but  to  remove  the  Presi- 
dent's scruples,  an  act  was  passed  empowering  him  to  proceed 
with  hostilities.17 

Jefferson  himself  was  evidently  not  convinced  by  the  argu- 
ment of  Hamilton,  for  in  1805,  in  a  confidential  message  to  Con- 
gress with  regard  to  the  Spanish  depredations  on  United  States 

is  Works  of  Alexander  Hamilton,  VII,  201-204. 

"McMaster,  History  of  the  People  of  the  United  States,  III,  201;  Act 
of  Mar.  26,  1804.  Annals  of  Cong.,  8  Cong.,  1  Sess.,  App.,  1301. 


65]  POWER  OF  DEFENSE  65 

territory,  he  again  asserted  the  doctrine  that  only  by  authority 
of  Congress  could  any  hostile  act  be  performed,  beyond  the 
strictest  necessities  of  self-defense.  Altho  the  Spaniards  had 
authorized  the  inference  that  it  was  their  intention  to  advance 
on  our  possessions,  Jefferson  wrote :  ' '  Considering  that  Congress 
alone  is  constitutionally  invested  with  the  power  of  changing 
our  condition  from  peace  to  war,  I  have  thought  it  my  duty  to 
await  their  authority  for  using  force  in  any  degree  which  could 
be  avoided.  I  have  barely  instructed  the  officers  stationed  in  the 
neighborhood  of  the  aggressions,  to  protect  within  the  borders 
actually  delivered  to  us,  and  not  to  go  out  of  them  but  when 
necessary  to  repel  an  inroad,  or  to  rescue  a  citizen,  or  his  proper- 
ty." 18  Congress  took  no  action  beyond  referring  the  message  to 
a  committee,  and  hence  the  inactive  and  undecided  attitude  of 
the  government  continued.19 

In  1818  the  question  as  to  the  extent  of  the  power  of  defense 
came  before  the  administration  in  a  different  and  more  extreme 
form.  President  Monroe  strongly  asserted  his  right  to  take 
defensive  measures  against  the  Indians  in  the  South,  even  to 
the  extent  of  pursuing  them  across  the  border  into  Florida,  at 
that  time  a  Spanish  possession.  "The  inability  of  Spain,"  he 
said,  "to  maintain  her  authority  to  fulfill  the  treaty  (of  1795 ),20 
ought  not  to  expose  the  United  States  to  other  and  greater  in- 
juries. When  the  authority  of  Spain  ceases  to  exist  there,  the 
United  States  have  a  right  to  pursue  their  enemy  on  a  principle 
of  self-defense.  .  .  To  the  high  obligations  and  privileges  of 
this  great  and  sacred  principle  of  self-defense  will  the  move- 
ment of  our  troops  be  strictly  confined. ' '  Acting  on  these  prin- 
ciples, the  President  had  given  General  Jackson  orders  which 
clearly  authorized  him  to  enter  Florida,  but  only  in  the  pursuit 
of  the  Indians,  and  had  carefully  instructed  him  in  that  case 
"to  respect  Spanish  authority  wherever  it  is  maintained,"  and 
"to  withdraw  his  forces  from  the  province  as  soon  as  he  shall 
have  reduced  that  tribe  to  order.  .  ,"21 

18.4m.  State  Papers,  For.  Bel.,  II,  613;  Annals  of  Cong.,  9  Cong., 
1  Sess.,  18-19. 

is  Annals  of  Cong.,  9  Cong.,  1  Sess.,  947. 

20  Spain  had  bound  herself  in  this  treaty  to  restrain  the  Indians  from 
committing  hostilities  against  the  United  States. 

21  Message  to  Congress,  Mar.  25,  1818.     Am.  State  Papers,  Mil.  Affairs, 
I,  681;  cf.  Jackson's  defense  of  himself.     Ibid.,  755-757. 


66  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [66 

General  Jackson  accordingly  carried  the  campaign  against 
the  Indians  into  Florida,  but  in  so  doing  came  into  conflict  with 
the  Spanish  authorities,  and  even  stormed  a  Spanish  fort  and 
occupied  Pensacola.  When  the  subject  of  his  transaction  came 
before  the  Cabinet  for  deliberation,  John  Quincy  Adams  argued 
strenuously  in  support  of  the  proposition  that  Jackson's  acts 
were  justified  as  purely  defensive  measures.  "My  opinion  is," 
he  said,  "that  there  was  no  real,  though  an  apparent,  violation 
of  his  instructions;  that  his  proceedings  were  justified  by  the 
necessity  of  the  case,  and  by  the  misconduct  of  the  Spanish 
commanding  officer  in  Florida.  The  question  is  embarrassing 
and  complicated,  not  only  as  involving  that  of  actual  war  with 
Spain,  but  that  of  the  Executive  power  to  authorize  hostilities 
without  a  declaration  of  war  by  Congress.  There  is  no  doubt 
that  defensive  acts  of  hostility  may  be  authorized  by  the  Execu- 
tive; but  Jackson  was  authorized  to  cross  the  Spanish  line  in 
pursuit  of  the  Indian  enemy.  My  argument  is  that  the  question 
of  the  constitutional  authority  of  the  Executive  is  precisely 
there ;  that  all  the  rest,  even  to  the  order  for  taking  the  Fort  of 
Barrancas  by  storm,  was  incidental,  deriving  its  character  from 
its  object,  which  was  not  hostility  to  Spain,  but  the  termination 
of  the  Indian  war."  Jackson's  justification  was  the  eminently 
practical  one  that  an  imaginary  boundary  line  could  not  afford 
protection  to  our  frontiers  from  the  Indians  in  Florida,  that  the 
Spanish  authorities  had  interfered  with  the  success  of  his  cam- 
paign, and  that  all  his  operations  were  founded  on  those  con- 
siderations. This  argument  appealed  to  Adams,  who  said  that 
"everything  he  did  was  defensive;  that  as  such  it  was  neither 
war  against  Spain  nor  a  violation  of  the  Constitution. ' ' 22 

This  seemed  to  be  a  rather  extreme  view  of  what  constitutes  a 
"defensive  measure,"  and  Adams  was  unable  to  convince  the 
President  and  the  other  members  of  the  Cabinet,  all  of  whom 
were  of  the  opinion  that  Jackson  had  acted  not  only  without, 
but  against  his  instructions;  and  that  he  had  committed  war 

22  Memoirs  of  John  Quincy  Adams.  IV,  108,  111.  About  a  year  later, 
Adams  advised  the  President  that  the  occupation  of  Florida,  a  measure 
then  proposed,  would  be  "in  itself  an  act  of  war.  It  may  very  probably 
involve  us  in  a  real  and  very  formidable  war. ' '  He  very  frankly  admits, 
however,  that  this  opinion  did  not  reflect  his  real  views,  but  was  given 
in  order  to  secure  just  that  result,  since  he  had  discovered  that  his  ad- 
vice usually  resulted  in  the  opposite  action  being  taken.  Memoirs,  IV,  450. 


67]  POWER  OF  DEFENSE  67 

upon  Spain,  which  could  not  be  justified  and  must  be  disavow- 
ed by  the  administration.  The  President  supposed,  however, 
that  there  might  be  circumstances  which  would  have  justified 
such  measures  as  Jackson  had  taken,  but  that  he  had  not  made 
out  his  case.23 

President  Wilson's  despatch  of  a  punitive  expedition  into 
Mexico  after  the  Columbus  raid  in  March,  1916,  involved  the 
exercise  of  powers  of  defense  similar  to  those  claimed  by  Mon- 
roe in  1818.  The  expedition  was  thought  to  be  necessary  in  or- 
der to  protect  the  United  States  against  bandit  raids  which 
events  had  apparently  shown  the  Mexican  government  too  weak 
to  suppress.  In  a  statement  to  the  press,  President  Wilson  an- 
nounced that  the  expedition  would  have  the  "single  object"  of 
capturing  Villa  and  putting  a  stop  to  his  forays.  "This,"  he 
said,  "can  and  will  be  done  in  entirely  friendly  aid  of  the  con- 
stituted authorities  in  Mexico  and  with  scrupulous  respect  for 
the  sovereignty  of  Mexico."2*  Tho  the  expedition  later  in- 
volved threatening  complications  with  the  Mexican  authorities, 
and  even  some  encounters  with  Mexican  troops  that  resulted  in 
bloodshed,25  it  has  been  justified  on  the  ground  that  "the 
President  was  in  this  instance  but  performing  his  constitutional 
function  of  repelling  invasion."26 

The  President  has  also  in  another  way  shown  himself  able 
to  exercise  important  powers  of  defense  without  express  author- 
ization from  Congress.  When  the  difficulty  with  France  reach- 
ed a  crisis  in  1798,  President  Adams  announced  to  Congress  that 
he  had  revoked  his  former  instructions  to  collectors  not  to  per- 
mit the  sailing  of  armed  merchant  vessels,  and  thereby  indirect- 
ly authorized  the  arming  of  such  vessels  as  a  measure  of  de- 
fense.27 This  exercise  of  executive  power  was  opposed  by  Jef- 
ferson, who  looked  upon  it  as  a  measure  leading  to  war  and  pro- 
posed that  there  should  be  "a  Legislative  prohibition  to  arm 
vessels  instead  of  the  Executive  one  which  the  President  informs 
them  he  has  withdrawn. ' ' 28 

23  ibid.,  108. 

2*  See  Am.  Jour.  Int.  Law.  X,  Supp.,  180,  184. 

25  For  a  brief  account,  see  Ogg,  National  Progress,  297-299. 

26  Corwin,  The  President 's  Control  of  Foreign  Relations,  163,  n. 
"  Message  of  Mar.  19,  1798.  Richardson,  op.  cit.,  I,  265. 

28  Jefferson  to  Monroe,  Mar.  21,  1798.  Writings  of  Thomas  Jefferson, 
VII,  221. 


68  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [68 

That  suggestion  was  favored  also  by  Madison,  who  denounc- 
ed the  action  of  the  President  as  a  usurpation  of  power.  "The 
first  instructions,"  he  said,  "were  no  otherwise  legal  than  as 
they  were  in  pursuance  of  the  Law  of  Nations,  and  consequently 
in  execution  of  the  law  of  the  land.  The  revocation  of  the  in- 
structions is  a  virtual  change  of  the  law,  &  consequently  a 
usurpation  by  the  Ex.  of  a  legislative  power.  It  will  not  avail 
to  say  that  the  law  of  Nations  leaves  this  point  undecided,  & 
that  every  nation  is  free  to  decide  for  itself.  If  this  be  the  case, 
the  regulation  being  a  Legislative  not  an  Executive  one,  belongs 
to  the  former,  not  the  latter  Authority;  and  comes  expressly 
within  the  power,  'to  define  the  law  of  Nations/  given  to  Con- 
gress by  the  Constitution."  29 

While  the  right  of  the  President  to  authorize  the  arming  of 
merchant  vessels  for  defense  was  thus  disputed,  the  seriousness 
of  such  action  was  not  questioned  even  by  his  supporters,  but 
on  the  other  hand,  it  was  frankly  admitted  to  be  a  step  leading 
to  war.30 

More  recently  the  President's  right  to  exercise  this  power  of 
arming  merchant  vessels  for  defense  again  became  a  sharp  is- 
sue. Germany  having  announced  the  renewal  of  her  ruthless 
submarine  warfare,  President  Wilson  went  before  Congress 
February  26,  1917,  and  asked  for  authority  "to  arm  our  mer- 
chant vessels  with  defensive  arms  should  that  become  necessary, 
and  with  the  means  of  using  them,  and  to  employ  any  other  in- 
strumentalities or  methods  that  may  be  necessary  and  adequate 
to  protect  our  ships  and  our  people  in  their  legitimate  and  peace- 
ful pursuits  on  the  seas."  While  thus  requesting  express  au- 
thority, the  President  at  the  same  time  announced  that  he  con- 
sidered himself  as  already  possessing  that  authority  "without 
special  warrant  of  law,  by  the  plain  implication  of  my  consti- 
tutional duties  and  powers."  He  said,  however,  that  he  pre- 
ferred under  the  circumstances  not  to  act  upon  such  general 
implication,  but  wished  to  feel  "that  the  authority  and  power 

29  Madison  to  Jefferson,  Apr.  2,  1798.  Writings  of  James  Madison,  VI, 
313.  Cf.  Constitution,  Art.  I,  See.  8,  Cl.  10. 

so  William  Vans  Murray,  minister  at  The  Hague,  wrote  as  follows  to 
John  Quincy  Adams,  June  1,  1798:  "I  have  seen  the  circular,  it  permits 
arming  in  defence.  It  was  all  that  the  President  could  authorize,  but  it  is 
war."  Eeport,  Am.  Hist.  Assn.  1912,  416. 


69]  POWER  OF  DEFENSE  69 

of  the  Congress  are  behind  me  in  whatever  it  may  become  neces- 
sary for  me  to  do. ' ' 31 

The  bill  granting  the  authority  asked  for  was  favored  by  an 
overwhelming  majority  in  both  houses  of  Congress,  but  was  de- 
feated by  a  filibuster  in  the  Senate,  the  measure  being  opposed 
principally  on  the  ground  that  it  was  a  step  leading  to  war,  and 
therefore  a  delegation  of  the  war-making  power  of  Congress  to 
the  President.  The  view  of  this  "little  group  of  willful  men" 
—  as  they  were  characterized  by  President  Wilson  in  a  public 
statement  —  was  perhaps  best  expressed  by  Senator  Stone  (Mis- 
souri), when  he  said:  "This  bill,  if  enacted,  would  confer  pow- 
er upon  the  President  to  initiate  war,  if  he  should  so  desire  or 
determine,  and  to  do  that  supremely  solemn  thing  without  first 
submitting  the  choice  of  war  or  peace  to  Congress."  Re- 
garding the  President's  claim  to  that  power  without  express 
authorization,  he  said:  "I  can  not  consent  that  this  clause  (i.  e., 
the  clause  "of  the  Constitution  giving  the  President  power  to 
execute  the  laws)  confers,  or  was  ever  intended  to  confer,  power 
upon  the  President  to  determine  an  issue  between  this  Nation 
and  some  other  sovereignty —  an  issue  involving  questions  of  in- 
ternational law  —  and  to  authorize  him  to  settle  that  law  for 
himself,  and  then  proceed  to  employ  the  Army  and  Navy  to 
enforce  his  decision. ' ' 32 

In  spite  of  the  failure  of  Congress  to  grant  his  request  for  ex- 
press authority,  President  Wilson,  still  convinced  of  his  own 
power,  and  fortified  not  only  by  the  known  sentiments  of  the 
majority  in  Congress  but  also  by  the  advice  of  his  Secretary  of 
State  and  Attorney  General,33  gave  formal  notice  on  March  12 

si  N.  T.  Times  Current  Hist.  Mag.,  VI,  48. 

32  Cong.  Record,  LIV,  Pt.  5  (64  Cong.,  2  Sess.),  4878,  4884. 

33  N.  Y.  Times  Current  Hist.  Mag.,  VI,  55-56.  An  act  of  Mar.  3,  1819, 
provided  that  any  merchant  vessel   of  United   States  registry  might,  by 
armed  force,  oppose  or  defend  against  ' '  any  aggression,  search,  restraint, 
depredation,  or  seizure,"  attempted  by  any  other  merchant  vessel  or  "any 
armed    vessel    whatsoever,     not    being    a    public  armed    vessel    of    some 
nation  in  amity  with  the  United  States."     This  act,  still  in  force,  was 
held  by  some  to  forbid)  the  action  contemplate^  by  the  President,  since 
Germany  was  still  officially  a  nation  "in  amity  with  the  United  States." 
Secretary  Lansing  and  Attorney  General  Gregory  advised  the  President, 
however,  that  the  statute  had  been  enacted  with  reference  to  protection 
against  the  pirates  of  that  time  and  could  not  be  held  to  apply  to  the  pres- 


70  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [70 

of  his  determination  "to  place  upon  all  American  merchant 
vessels  sailing  through  the  barred  areas  an  armed  guard  for  the 
protection  of  the  vessels  and  the  lives  of  the  persons  on  board. ' ' 
Accordingly,  a  large  number  of  merchant  vessels  were  equipped 
with  six-inch  guns  and  gunners  from  the  United  States  Navy 
were  assigned  to  man  them,  supposedly  with  instructions  not 
to  await  an  attack  by  a  submarine,  but  to  fire  at  sight,  the  pres- 
ence of  a  submarine  presupposing  its  hostile  intent.34 

The  expedient  of  armed  neutrality  so  adopted  by  the  Execu- 
tive as  a  measure  of  defense  merely,  was  later  acknowledged  by 
President  Wilson  himself,  in  his  war  address  of  April  2,  to  be 
not  only  "impracticable"  and  "ineffectual  enough  at  best,"  but 
under  the  circumstances  even  "worse  than  ineffectual"  and 
"practically  certain  to  draw  us  into  the  war  without  either  the 
rights  or  the  effectiveness  of  belligerents. ' ' 35 

In  1846,  the  question  of  the  President's  powers  of  defense 
was  raised  in  an  even  more  complicated  and  contentious  form. 
The  events  leading  up  to  the  Mexican  War  involved  the  question 
of  the  President's  power  to  recognize  a  state  of  war  as  already 
existing,  and  thereby  begin  defensive  measures  without  author- 
ization from  Congress.  They  also  illustrate  to  what  extent  hos- 
tile acts  may  be  performed  by  a  vigorous  President  in  bringing 
about  such  a  state  of  war,  and  how  far  operations  may  be  con- 
ducted in  the  name  of  "defense." 

General  Taylor  had  been  sent,  after  the  annexation  of  Texas, 
to  occupy  the  disputed  territory  beyond  the  Nueces  River,  with 
instructions,  however,  —  so  the  President  said  —  "to  abstain 
from  all  aggressive  acts  toward  Mexico  or  Mexican  citizens,  and 

ent  circumstances.  See  the  act  in  Annals  of  Cong.,  15  Cong.,  2  Sess.,  II, 
App.,  2523. 

a* N.  Y.  Times  Current  Hist.  Mag.  VI,  56.  "Because  submarines  are  in 
effect  outlaws  when  used  as  the  German  submarines  have  been  used  against 
merchant  shipping,  it  is  impossible  to  defend  ships  against  their  attacks 
as  the  law  of  nations  has  assumed  that  merchantmen  would  defend  them- 
selves against  privateers  or  cruisers,  visible  craft  giving  chase  upon  the 
open  sea.  It  is  common  prudence  in  such  circumstances,  grim  necessity,  in- 
deed, to  endeavor  to  destroy  them  before  they  have  shown  their  own  in- 
tention. They  must  be  dealt  with  upon  sight,  if  dealt  with  at  all. ' '  Ad- 
dress to  Congress,  Apr.  2,  1917.  McKinley,  Collected  Materials  for  the  Study 
of  the  War  (1st  ed.),  13. 

so  McKinley,  op.  cit.,  14. 


71]  POWER  OF  DEFENSE  71 

to  regard  the  relations  between  that  Republic  and  the  United 
States  as  peaceful  unless  she  should  declare  war  or  commit  acts 
of  hostility  indicative  of  a  state  of  war. ' ' 36  President  Polk, 
however,  had  also,  in  the  fall  of  1845,  instructed  Taylor  that  the 
crossing  of  the  Del  Norte  by  the  Mexican  army  was  to  be  regard- 
ed as  an  act  of  war,  and  in  that  event  he  should  not  wait  to  be 
attacked,  but  should  attack  first.  Moreover,  he  was  not  only  to 
drive  the  invaders  back  across  the  river,  but  he  was  vested  with 
discretionary  authority  to  pursue  the  Mexican  army  into  Mexi- 
can territory,  and  to  take  Matamoras  or  any  other  post  on  that 
side  of  the  river,  with  only  the  caution  "not  to  penetrate  any 
great  distance  into  the  interior  of  Mexican  Territory."  Like- 
wise Commodore  Conner,  commanding  the  American  squadron 
in  the  Gulf  of  Mexico,  was  instructed  in  a  similar  event  to  block- 
ade all  the  Mexican  ports  on  the  Gulf,  and  to  attack  and  take 
them  if  practicable,  excepting  only  Yucatan  and  Tobasco,  which 
had  been  reported  as  against  the  threatened  war  with  the  Uni- 
ted States.37 

The  President  evidently  held  none  of  Jefferson's  timid  views 
with  regard  to  the  Executive's  powers  of  defense.  Polk  expect- 
ed war,  he  was  indeed  fully  determined  on  war,  but  meant  that 
the  war  should  be  ' '  defensive ' '  on  the  part  of  the  United  States. 
He  had  no  intention,  however,  of  limiting  such  a  war  of  defense 
to  merely  repelling  invaders.  Polk  did  make  inquiry  of  one  of 
his  friends  in  Congress  (Senator  Bagby  of  Alabama)  as  to  the 
necessity  or  propriety  of  calling  Congress,  in  the  event  of  a 
declaration  of  war  or  an  invasion  of  Texas  by  Mexico,  and  was 
plainly  relieved  when  the  Senator  gave  it  as  his  "clear  opin- 
ion" that  Congress  should  not  be  called.38 

Having  thus  manipulated  the  situation  so  that  actual  hostil- 
ities were  finally  precipitated  on  the  morning  of  April  25,  Presi- 
dent Polk  thus  summed  up  the  situation  in  his  message  of  May 
11,  1846:  "After  reiterated  menaces,  Mexico  has  passed  the 
boundary  of  the  United  States,  has  invaded  our  territory,  and 
shed  American  blood  upon  the  American  soil.  She  has  pro- 
claimed that  hostilities  have  commenced,  and  that  the  two  na- 
tions are  now  at  war.  As  war  exists,  and,  notwithstanding  all 

36  Eiehardson,  op.  tit.,  IV,  441. 

37  Diary  of  James  E.  Polk,  I,  9,  12. 

I    13. 


72  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [72 

our  efforts  to  avoid  it,  exists  by  the  act  of  Mexico  herself,  we 
are  called  upon  by  every  consideration  of  duty  and  patriotism 
to  vindicate  with  decision  the  honor,  the  rights,  and  the  interests 
of  our  country.  .  .  In  further  vindication  of  our  rights  and 
defense  of  our  territory,  I  invoke  the  prompt  action  of  Congress 
to  recognize  the  existence  of  war,  and  to  place  at  the  disposition 
of  the  Executive  the  means  of  prosecuting  the  war  with  vigor, 
and  thus  hastening  the  restoration  of  peace. ' ' 39 

Even  before  the  President  asked  Congress  thus  to  "  recognize 
the  existence  of  war,"  his  instructions  of  the  year  before  had 
been  carried  out,  two  battles  had  been  fought,40  and  the  war 
was  already  being  carried  on  —  without  any  declaration  or  au- 
thorization by  Congress.  In  Congress,  in  fact,  the  President's 
statement  that  "war  exists  by  act  of  Mexico,"  and  his  conse- 
quent assumption  that  the  war  would  be  a  "defensive"  one, 
were  not  accepted  without  dispute.  Senator  Benton,  for  exam- 
ple, was  willing  to  vote  men  and  money  for  defense  of  American 
territory,  but  was  not  prepared  to  make  aggressive  war  on  Mex- 
ico. He  left  it  to  be  inferred  that  he  did  not  think  the  territory 
of  the  United  States  extended  west  of  the  Nueces  Eiver,  and 
therefore  he  had  not  approved  Taylor's  occupation  of  the  re- 
gion.*1 

Mr.  Morehead  (of  Kentucky)  denied  that  war  could  exist 
without  some  prior  action  on  the  part  of  Congress.  ' '  If  war  does 
now  exist,"  he  said,  " — if  the  people  of  the  United  States  now 
find  themselves  in  a  state  of  war  with  Mexico,  it  is  a  war  which 
has  not  been  brought  about  or  declared  by  the  legislative  de- 
partment of  the  United  States,  to  which  constitutionally  the  pow- 
er of  declaring  war  belongs.  The  President  of  the  United  States 
has  no  constitutional  power  to  involve  the  nation  in  war.  But 
if  war  does  exist  at  this  time  between  the  United  States  and 
Mexico,  it  may  follow  that  the  President  of  the  United  States 
may  involve  the  country  in  war  without  the  assent  of  the  legis- 

39  Eichardson,  op.  tit.,  IV,  442,  443. 

*°  Palo  Alto  and  Resaca  de  la  Palma,  on  May  8  and  9,  respectively. 

•*i  Diary  of  James  K.  Polk,  I,  390.  Benton  also  suggested  that  a  peace- 
able adjustment  might  be  had,  referring  to  the  proclamation  of  the  Presi- 
dent ad  interim  of  Mexico  denying  his  own  right  to  declare  war  but  leav- 
ing it  to  the  consideration  of  the  Mexican  Congress.  See  Benton 's  Abridg- 
ment of  the  Debates  of  Congress,  XV,  499. 


73]  POWER  OF  DEFENSE  73 

lative  department  of  the  Government."42  Mr.  Archer  (of  Vir- 
ginia) likewise  declared  that  the  intervention  of  Congress  was 
absolutely  indispensable  to  constitute  war,  that  the  existence  of 
hostilities  on  one  of  the  frontiers  of  the  United  States  did  not 
necessarily  put  us  in  a  state  of  war  with  a  foreign  power;  that 
the  President's  statement  could  not  alone  be  accepted  as  indicat- 
ing a  state  of  war,  since  an  investigation  might  show  the  state 
of  things  on  the  Rio  Grande  to  be  misunderstood  and  the  Mexican 
authorities  to  have  acted  justifiably;  that  if  the  President's 
statement  were  to  be  accepted  as  a  legal  and  constitutional  ac- 
ceptation of  a  state  of  war,  then  the  officers  and  men  on  the  Rio 
Grande  might  involve  the  country  in  war  at  their  pleasure.43 

The  most  vigorous  assailant  of  the  President 's  declaration  was 
Calhoun,  who  insisted  that  ' '  in  the  sense  of  the  Constitution  war 
could  be  declared  only  by  Congress,"  that  only  through  its  au- 
thority could  the  state  of  things  called  "war"  be  announced  to 
the  country  and  the  world.  "War  must  be  made,"  he  said,  "by 
the  sovereign  authority,  which  in  this  case,  were  the  Mexican 
Congress,  on  the  one  side,  and  the  American  Congress,  on  the 
other.  The  President  of  Mexico  could  not  make  war.  It  could 
be  done  only  by  the  two  countries.  Even  if  the  two  Presidents 
had  declared  war,  the  nations  could  disavow  the  act."  He  de- 
clared it  was  "monstrous"  that  he  should  be  asked  to  affirm 
"that  a  local  rencontre,  not  authorized  by  the  act  of  either  Gov- 
ernment, constituted  a  state  of  war  between  the  Government  of 
Mexico  and  the  Government  of  the  United  States  —  to  say  that, 
by  a  certain  military  movement  of  General  Taylor  and  General 
Arista,  every  citizen  of  the  United  States  was  made  the  enemy 
of  every  man  in  Mexico.  .  .  It  stripped  Congress  of  the 
power  of  making  war;  and,  what  was  more  and  worse,  it  gave 
that  power  to  every  officer,  nay,  to  every  subaltern  commanding 
a  corporal 's  guard. ' ' 44 

The  President  was,  of  course,  not  lacking  in  supporters, 
among  them  General  Cass,  who  took  direct  issue  with  Calhoun. 
"There  can  be  no  hostilities  undertaken  by  a  government,"  he 
said,  "which  do  not  constitute  a  state  of  war.  War  is  a  fact, 
created  by  an  effort  made  by  one  nation  to  injure  another.  One 

"Benton's  Debates,  XV,  489,  492. 

« Ibid.,  489,  490. 

"  Ibid.,  491,  497,  500. 


74  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [74 

party  may  make  a  war,  though  it  requires  two  parties  to  make  a 
peace. ' '  While  admitting  that  Congress  alone  has  a  right  to  de- 
clare war,  and  that  "no  authority  but  Congress  can  commence 
an  aggressive  war,"  yet  he  asserted  that  another  country  "can 
commence  a  war  against  us  without  the  co-operation  of  Con- 
gress," that  it  can,  "at  its  pleasure,  terminate  the  relations  of 
peace  with  us,  and  substitute  for  these  the  relations  of  war,  with 
their  legitimate  consequences.  War  may  be  commenced  with  or 
without  a  previous  declaration.  It  may  be  commenced  by  a 
manifesto  announcing  the  fact  to  the  world,  or  by  hostile  attacks 
by  land  or  sea."  Whether  or  not  the  disputed  territory  right- 
fully belonged  to  the  United  States  or  to  Mexico  made  no  differ- 
ence, in  the  opinion  of  Cass.  The  ultimate  claim  to  the  country 
was  a  matter  for  diplomatic  adjustment,  but  the  United  States 
was  meanwhile  in  possession,  and  any  attempt  to  dislodge  her 
forces  was  an  act  of  aggression  and  an  act  of  war.  Hence  he 
argued  that  the  war  became  for  the  United  States  one  of 
defense.45 

Under  the  stress  of  the  patriotic  feelings  aroused  by  the  shed- 
ding of  American  blood,  and  under  the  plea  that  the  war  was 
strictly  one  of  defense,  Congress  sustained  the  President,  rec- 
ognized a  state  of  war  as  already  existing  by  act  of  Mexico,  and 
authorized  the  carrying  on  of  hostilities.46  The  House  of  Rep- 
resentatives, about  two  years  later,  passed  a  resolution  ' '  that  the 
war  was  unnecessarily  and  unconstitutionally  begun  by  the 
President  of  the  United  States."  47 

Lincoln's  proclamation  of  blockade  of  the  Southern  ports  in 
April,  1861,  again  raised  the  question  of  the  President's  power 
to  recognize  the  existence  of  a  state  of  war  without  a  declaration 
by  Congress.  The  situation  was  all  the  more  peculiar,  in  that 
this  was  not  a  foreign  war,  but  an  insurrection,  and  therefore  a 
blockade  of  the  Southern  ports  was  really  a  blockade  of  the  na- 
tion's own  ports,  something  unknown  to  international  law. 
Nevertheless,  the  Supreme  Court,  in  the  decision  of  the  Prize 

*sBenton's  Debates,  XV,  503,  504. 

46  Act  of  May  13,  1846.  9  Stat.  at  L.,  9. 

«  See  amendment!  of  Mr.  Ashmun  to  resolution  of  thanks  to  Gen.  Tay- 
lor, adopted  Jan.  3,  1848.  On  Feb.  14,  1848,  the  House  tabled  a  motion  to 
expunge  this  amendment  from  the  Journal.  Cong.  Globe,  30  Cong.,  1  Sess., 
95,  343-344. 


75]  POWER  OF  DEFENSE  75 

Cases  already  referred  to,  sustained  the  validity  of  the  Presi- 
dent's action,  and  asserted  his  right  to  recognize  a  state  of  war 
as  already  existing,  and  to  take  measures  of  defense  in  advance 
of  Congressional  authority.  "A  civil  war  is  never  solemnly  de- 
clared, ' '  said  the  Court,  ' '  it  becomes  such  by  its  accidents  —  the 
number,  power,  and  organization  of  the  persons  who  originate 
and  carry  it  on.  .  .  As  a  civil  war  is  never  publicly  pro- 
claimed eo  nomine  against  insurgents,  its  actual  existence  is  a 
fact  in  our  domestic  history  which  the  Court  is  bound  to  notice 
and  to  know.  The  true  test  of  its  existence  .  .  .  may  be 
thus  summarily  stated:  When  the  regular  course  of  justice  is 
interrupted  by  revolt,  rebellion,  or  insurrection,  so  that  the 
Courts  of  Justice  cannot  be  kept  open,  civil  war  exists  and  hostil- 
ities may  be  prosecuted  on  the  same  footing  as  if  those  opposing 
the  Government  were  foreign  enemies  invading  the  land."  The 
Court  held  that  the  question  of  fact  as  to  when  an  insurrection 
hasweached  such  alarming  proportions  as  to  be  called  a  war  and 
the  insurgents  to  be  accorded  the  character  of  belligerents,  is  a 
question  to  be  decided  by  the  President  in  his  capacity  as  Com- 
mander-in-Chief .  The  Court  would  be  governed  by  the  decisions 
and  acts  of  the  political  department  to  which  the  power  was  en- 
trusted. "The  proclamation  of  blockade,"  said  the  Court,  "is 
itself  official  and  conclusive  evidence  to  the  Court  that  a  state 
of  war  existed  which  demanded  and  authorized  a  recourse  to 
such  a  measure  under  the  circumstances  peculiar  to  the  case. ' ' 48 
The  Court  thus  in  effect  held  that,  while  the  existence  of  a  state 
of  war  was  necessary  to  the  validity  of  a  blockade,  the  fact  that 
a  blockade  had  been  proclaimed  was  proof  that  a  state  of  war 
existed;  and  the  President  having  authority  to  proclaim  the 
blockade,  was  thereby  empowered  to  declare  the  existence  of  a 
war,  and  bind  the  Court  and  the  country  to  his  declaration. 

Four  justices,  including  Chief-Justice  Taney,  dissented 
vigorously  from  this  opinion.  They  argued  that,  altho  Con- 
gress had  conferred  upon  the  President  authority  to  meet  sud- 
den emergencies  —  to  repel  invasions  and  suppress  insurrec- 
tions—  that  authority  did  not  invest  him  with  the  war  power. 
If  so,  they  maintained,  then  we  are  in  a  state  of  war  every  time 
a  military  force  is  called  out,  "for  the  nature  of  the  power  can- 

**  Prize  Cases,  2  Black,  635,  666,  667,  670  (1862). 


76  WAR  POWERS  OP  THE  EXECUTIVE  IN  UNITED  STATES  [76 

not  depend  upon  the  numbers  called  out."  "The  Acts  of  1795 
and  1807, ' '  they  said,  ' '  did  not,  and  could  not  under  the  Consti- 
tution, confer  on  the  President  the  power  of  declaring  war 
against  a  State  of  this  Union,  or  of  deciding  that  war  existed.  .  . 
This  great  power  is  reserved  to  the  legislative  department  by 
the  express  words  of  the  Constitution,  and  cannot  be  delegated 
or  surrendered  to  the  Executive."  The  minority  held,  there- 
fore, that  if  the  insurrection  were  to  be  placed  on  the  footing 
of  a  war,  within  the  meaning  of  the  Constitution,  and  be  accord- 
ed belligerent  rights  under  international  law,  it  must  be  recog- 
nized or  declared  as  a  war  by  the  war  making  power  of  the  Gov- 
ernment, that  is,  by  Congress.  "There  is  no  difference  in  this 
respect,"  said  the  justices,  "between  a  civil  and  a  public  war."49 

Such  an  eminent  authority  as  Professor  Willoughby  is  inclin- 
ed to  agree  with  the  minority  rather  than  with  the  majority  of 
the  Court.  He  says  that  while  all  nations  have  the  power  and 
right,  in  case  of  a  civil  contest  in  another  State,  to  determine 
whether  the  struggle  is  to  be  treated  as  a  war  and  the  contestants 
as  belligerents,  yet  the  State  concerned  is  not  bound  by  such 
action  and  may  continue  to  treat  the  insurgents  as  rebels.  There- 
fore, he  says,  "it  would  seem  that,  in  the  United  States,  from  the 
constitutional  viewpoint,  it  should  lie  with  the  war-declaring 
power,  that  is,  with  Congress,  to  determine  when  the  civil  strug- 
gle should  be  recognized  as  a  war. ' ' 50 

Whether  or  not  we  agree  with  Professor  Willoughby  and  the 
minority  of  the  Court  as  presenting  the  most  logical  argument 
from  a  strictly  constitutional  standpoint,  the  decision  of  the 
majority  stands  as  law  in  the  United  States,  as  it  also  represents 
the  more  practical  point  of  view.  The  Constitution,  made  as  it 
was  by  practical  men  who  had  just  emerged  from  a  long,  hard 
struggle  of  defense,  must  be  construed  as  giving  the  power  to 
take  measures  for  defense  as  quickly  as  those  measures  may  be 
needed.  While  the  decision  of  the  Court  in  this  case  upheld 
particularly  the  President's  power  to  recognize  an  insurrection 
as  a  "state  of  war"  and  undertake  the  necessary  defensive  meas- 
ures in  that  case  without  authority  from  Congress,  the  principle 
has  also  been  held  to  apply  to  foreign  wars  as  well.  "In  fact," 
says  one  authority,  "according  to  the  terms  of  the  judicial  de- 

« Prize  Cases,  2  Black,  688-689,  690-693. 
co  Willoughby,  Constitutional  Law,  II,  797. 


77]  POWER  OF  DEFENSE  77 

cision  just  cited,  a  President  who  conducts  affairs  with  a  foreign 
power,  so  as  skillfully  to  lead  it  to  attack  the  United  States,  can 
always  engage  the  action  of  the  country  and  inaugurate  defen- 
sive war.  In  a  word,  his  remaining  on  the  defensive  is  all  that 
is  required  to  authorize  him  to  act. ' ' 51 

It  has  been  noted  how  the  power  of  defense  has  been  assumed 
and  asserted  by  the  Executive,  in  varying  degree,  as  a  necessary 
and  inherent  function  of  his  office.  The  law  and  practise  are 
thus  in  accord  as  to  the  nature  and  location  of  the  power.  With 
regard  to  the  extent  to  which  the  President  may  constitutionally 
exercise  this  power  of  defense,  Professor  Corwin  draws  an 
analogy  between  this  Presidential  power  and  the  right  of  a  state 
under  international  law  to  self-preservation,  and  concludes  that 
while  the  power  is  theoretically  reserved  for  "  grave  and  sud- 
den emergencies,"  in  practise  it  is  limited  only  by  the  "powers 
of  Congress  and  public  opinion. ' ' 52 


si  Chambrun,  The  Executive  Power,  121-122.  Cf.  McClain,  Constitutional 
Law  in  the  United  States,  190;  Schouler,  Constitutional  Studies,  139;  Ogg 
&  Beard,  National  Governments  and  the  World  War,  102;  Senate  Document 
No.  56,  54  Cong.,  2  Sess.,  5. 

52  The  President's  Control  of  Foreign  Relations,  156. 


CHAPTER  V 

POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR 

The  Constitution  gives  to  Congress  the  power  "to  declare  war, 
grant  letters  of  marque  and  reprisal,  and  make  rules  concern- 
ing captures  on  land  and  water. ' ' x  Those  functions  were  not 
granted  to  Congress  as  a  matter  of  course,  but  only  after  much 
serious  thought  and  discussion.  The  Congress  under  the  Con- 
federation had  the  "sole  and  exclusive  right  and  power  of  de- 
termining on  peace  and  war ; " 2  but  the  decision  in  the  Con- 
vention of  1787  to  create  separate  and  distinct  departments  of 
government  in  pursuance  of  Montesquieu's  theory  of  the  sep- 
aration of  powers,  opened  up  anew  the  whole  matter  of  the  prop- 
er functioning  of  each  department,  including  the  question  of 
the  proper  depository  for  the  war-making  functions. 

Hamilton  had  suggested,  in  his  plan  presented  quite  early 
in  the  course  of  the  Convention,3  that  the  power  of  declaring 
war  should  be  vested  exclusively  in  the  Senate,4  but  the  report 
of  the  Committee  of  Detail  gave  to  the  Legislature  as  a  whole 
the  power  ' '  to  make  war. ' ' 5  When  this  clause  came  up  for 
consideration  on  August  17,  it  became  a  subject  for  warm  de- 
bate. Mr.  Pinkney  opposed  vesting  the  power  in  the  Legislature, 
whose  proceedings  he  said  were  too  slow ;  the  House  of  Represen- 
tatives he  thought  too  numerous  a  body  for  such  deliberations; 
and  hence  he  agreed  with  Hamilton  that  the  Senate  was  the  best 
depository.6  Mr.  Butler  thought  the  objections  against  the  Leg- 

1  Art.  I,  Sec.  8,  01.  11. 

2  Articles   of   Confederation,   Art    IX,   in      Macdonald's     Documentary 
Source-Book  of  American  History,  199. 

s  June  18. 

*  Madison's  Journal  (Hunt  ed.),  I,  163. 
s  Ibid.,  II,  82. 

6  Pinkney  had  earlier  in  the  Convention  (June  1)  expressed  his  fear  of 
extending  the  ' '  powers  of  peace  and  war ' '  to  the  Executive,  which  he  said 

78 


79]  POWERS  WITH  REGARD  TO  A  DECLARATION  OP  WAR  79 

islature  would  operate  in  great  degree  also  against  the  Senate, 
and  favored  vesting  the  power  in  the  President,  "who  will  have 
all  the  requisite  qualities  and  will  not  make  war  but  when  the 
nation  will  support  it."  Mr.  Sherman,  on  the  other  hand, 
thought  the  Executive  should  not  be  able  to  commence  war ;  and 
Mr.  Gerry  "never  expected  to  hear  in  a  republic  a  motion  to 
empower  the  Executive  alone  to  declare  war."  Mr.  Mason  like- 
wise thought  the  Executive  was  not  safely  to  be  trusted  with 
the  war  power,  nor  was  the  Senate  in  his  opinion  so  constructed 
as  to  be  entitled  to  it.  "He  was  for  clogging  rather  than  fa- 
cilitating war ;  but  for  facilitating  peace. "  As  a  final  conclusion, 
the  word  "declare"  was  substituted  for  the  word  "make,"  and 
the  power  "to  declare  war"  was  entrusted  to  the  Legislative 
body.7 

It  seemed  evident  to  the  makers  of  the  Constitution  that  a 
power  involving  such  tremendous  consequences  must  in  a  repre- 
sentative government  rest  with  the  body  most  directly  repre- 
sentative of  the  people.  To  vest  the  power  of  declaring  war  in 
the  Executive  savored  too  much  of  monarchy  and  of  old-world 
institutions.  Few  have  disputed  the  wisdom  of  that  theory,  few 
would  do  so  today.  Nevertheless,  such  an  intense  American  as 
John  Quincy  Adams,  spoke  in  1817  of  the  provision  which  con- 
fers upon  the  legislative  the  power  of  declaring  war  as  "that 
error  in  the  Constitution"  and  a  piece  of  "clumsy  political  ma- 
chinery." He  thought  that,  in  the  theory  of  government  ac- 
cording to  Montesquieu  and  Rousseau,  the  power  of  declaring 
war  is  "strictly  an  Executive  act."  8 

It  is  believed  that  a  brief  examination  will  show,  that  tho  the 
power  to  begin  war  through  a  formal  declaration  is  clearly  and 
definitely  framed  to  Congress,  the  President  is  by  no  means 
excluded  from  all  share  in  such  declaration.  A  declaration  of 
war  is  a  simple  legislative  act,  going  through  the  same  proced- 
ure as  any  other  legislative  measure,  and  requiring  no  extraor- 
dinary majority  for  its  passage.9  The  President  has  therefore 

would  render  the  Executive  a  ' '  monarchy  of  the  worst  kind,  to  wit,  an 
elective  one."  Madison's  Journal  (Hunt  ed.),  II,  49. 

7  For  the  debate  on  this  entiro  proposition,  see  Ibid.,  II,  187-189;  Far- 
rand's  Eecords  of  the  Federal  Convention,  II,  318-320. 

8  Memoirs  of  John  Quincy  Adams,  IV,  32;  but  cf.  XII,  51. 

9  It  is  rather  curious  to  note  that  Jefferson  was  for  a  time  under  the 


80  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [80 

all  the  rights  and  powers  in  connection  with  a  declaration  of 
war  that  he  has  with  regard  to  matters  of  ordinary  legislation. 
Judge  Baldwin  10  remarks  that  there  may  be  said  to  be  three 
stages  in  a  declaration  of  war:  (1)  Doings  of  the  President  in 
informing  Congress  of  the  state  of  relations  with  the  Power 
against  which  war  may  be  declared;  (2)  doings  of  Congress  in 
making  the  declaration;  and  (3)  approval  of  the  declaration  by 
the  President. 

In  the  first  place,  then,  the  President,  under  the  constitutional 
provision  requiring  that  he  "shall  from  time  to  time  give  to 
the  Congress  information  of  the  state  of  the  Union,  and  recom- 
mend to  their  consideration  such  measures  as  he  shall  judge 
necessary  and  expedient, " "  is  empowered  to  recommend  a 
declaration  of  war,  first  communicating  to  Congress  the  facts 
and  circumstances  that  in  his  opinion  call  for  such  declaration. 
The  President,  through  this  power  of  giving  information  to 
Congress  and  of  recommending  measures  to  be  taken,  may  large- 
ly influence  that  body  in  determining  upon  war  or  peace.  He 
may  withhold  certain  information,  the  disclosure  of  which  would 
vitally  affect  the  action  of  Congress.  He  may,  if  he  is  desirous 
of  war,  reveal  only  such  information  as  will  tend  to  inflame 
congressional  opinion,  or  he  may  select  a  moment  for  his  dis- 
closures and  recommendations  when  opinion  is  excited  and  ready 
to  hear  the  worst. 

Thus  Jefferson  charged  that  President  Adams  ''kept  out  of 
sight  in  his  speech"  (of  May  16,  1797)  12  Spanish  protests  and 
demands,  and  "thereby  left  it  to  be  imagined  that  France  is  the 
only  power  of  whom  we  are  in  danger ; ' '  that  the  Executive  had 
war  in  contemplation,  with  the  expectation  that  the  legislature 
"might  catch  the  flame;"  that  the  convocation  of  Congress13 

impression  that  a  two-thirds  majority  was  required  to  pass  a  declaration  of 
war.  He  later  admitted  his  error  on  this  point.  Writings  of  Thomas  Jef- 
ferson, VII,  220,  222,  243-244.  The  New  York  ratifying  convention  of 
1788  proposed  an  amendment  requiring  a  two-thirds  majority  of  each  house 
to  declare  war,  and  a  similar  amendment  was  proposed  by  the  Hartford 
Convention  in  1814,  neither  of  which  received  any  serious  consideration. 
See  The  Federalist  (Ford  ed.),  Appendix,  643,  689. 

10  S.  E.  Baldwin,  ' '  The  Share  of  the  President  in  a  Declaration  of  War, ' ' 
Am.  Jour.  Int.  Law,  XII,  1-14. 

11  Art.  II,  Sec.  3. 

12  Richardson,  Messages  and  Papers  of  the  Presidents,  I,  233-239. 

is  Congress  had  been  summoned  to  meet  in  special  session  May  15,  1797. 


81]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  81 

was  in  fact  only  "an  experiment  on  the  temper  of  the  Nation, 
to  see  if  it  was  in  unison. ' ' 14  Both  Jefferson  and  Madison  charg- 
ed that  the  X  Y  Z  correspondence  was  laid  before  Congress  for 
the  particular  purpose  of  arousing  the  war  temper  of  that  body 
and  of  the  country.  In  his  message  of  March  19,  1798,15  the 
President,  without  revealing  the  content  of  the  famous  despatch- 
es, spoke  pessimistically  about  the  accomplishments  of  the  mis- 
sion to  France,  urged  the  adoption  of  defensive  measures,  and 
announced  the  action  he  himself  proposed  to  take.  Referring  to 
this  message,  Madison  wrote :  ' '  The  Constitution  supposes,  what 
the  History  of  all  Governments  demonstrates,  that  the  Executive 
is  the  branch  of  power  most  interested  in  war,  and  most  prone 
to  it.  It  has  accordingly  with  studied  care,  vested  the  question 
of  war  in  the  Legislature.  But  the  Doctrines  lately  advanced  16 
strike  at  the  root  of  all  these  provisions  and  will  deposit  the 
peace  of  the  Country  in  that  Department  which  the  Constitu- 
tion distrusts  as  most  ready  without  cause  to  renounce  it.  For  if 
the  opinion  of  the  President,17  not  the  facts  and  proofs  them- 
selves, are  to  sway  the  judgment  of  Congress  in  declaring  war, 
.  .  .  it  is  evident  that  the  people  are  cheated  out  of  the  best 
ingredients  in  their  Government,  the  safeguards  of  peace  which 
is  the  greatest  of  their  blessings. ' ' 18 

Madison  was  equally  vigorous  in  referring  to  the  actual  revela- 
tion of  the  famous  papers.  "It  is  easy  to  foresee,"  he  wrote, 
"the  zeal  and  plausibility  with  which  this  part  of  the  despatch- 
es will  be  inculcated,  not  only  for  the  general  purpose  of  en- 
forcing the  war  measures  of  the  Executive,  but  for  the  particu- 

i*  Writings  of  Thomas  Jefferson,  VII,  126,  138-139,  146,  148-149. 

is  Kichardson,  op.  cit.,  I,  264-265. 

*6  Madison  evidently  refers  here  to  the  proposed  measures  of  defense, 
especially  the  announcement  of  Adams  that  armed  merchantmen  of  the 
United  States  would  now  be  permitted  to  sail,  whereas  before  the  collec- 
tors had  instructions  to  hold  such  vessels  in  port.  See  Richardson,  op.  cit., 
I,  265;  also  supra,  67-68. 

"  Adams  had  expresed  his  opinion,  formed  from  an  examination  of  the 
correspondence,  that  the  objects  of  the  mission  to  France  could  not  be 
accomplished  ' '  on  terms  compatible  with  the  safety,  the  honor,  or  the  es- 
sential interests  of  the  nation, ' '  and  that  the  nation  should  prepare  for 
defense.  Eichardson,  op.  cit.,  I,  264.  It  should  be  remembered  that  the 
correspondence  had  not  yet  been  laid  before  Congress. 

«  Writings  of  James  Madison,  VI,  312-313. 


82  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [82 

lar  purpose  of  diverting  the  public  attention  from  the  more  im- 
portant part,  which  shows  the  speech  and  conduct  of  the  Presi- 
dent to  be  now  the  great  obstacle  to  accommodation.  .  .  The 
readiness  with  which  the  papers  were  communicated  and  the 
quarter  proposing  the  call  for  them,19  would  be  entitled  to  praise 
if  a  mass  of  other  circumstances  did  not  force  a  belief  that  the 
view  in  both  was  more  to  inflame  than  to  inform  the  public 
mind."20 

A  study  of  the  debates  in  Congress  shows  that  Jefferson  and 
Madison  were  not  alone  in  their  contention  that  the  President 
was  manipulating  the  situation  and  molding  Congress  to  war. 
Mr.  Livingston  suggested  that  since  Congress  had  been  practical- 
ly called  upon  to  decide  between  peace  and  war,  it  was  entitled  to 
see  the  whole  correspondence.  ' '  The  right  to  judge  what  it  was 
proper  to  publish  in  consideration  of  the  public  safety  and  in- 
terest, should  not  be  transferred  to  the  President,  as  he  might 
withhold  such  parts  of  the  papers  as  might  prevent  a  correct 
judgment  being  formed  upon  them. ' ' 21  Mr.  Gallatin  had  op- 
posed the  call  for  the  papers  and  favored  going  ahead  at  once 
to  determine  on  peace  or  war,  since,  as  he  said,  "if  it  had  first 
been  determined  to  call  for  further  information,  how  did  he 
know  that  it  would  be  given,  or,  if  given,  whether,  it  would  be  in 
a  mutilated  state,  rather  than  which  he  would  choose  to  act  with- 
out it  upon  the  Message  of  the  President  alone.  .  .  It  was  true, 
when  the  concessions  were  made  known,  it  was  possible  that  he 
might  differ  in  opinion  from  the  President  as  to  their  reasonable- 
ness; but  this  House  has  no  control  over  the  President  in  this 
respect.  Therefore,  the  information  which  he  has  given  to  the 
House  is  sufficient  for  them ;  and  they  ought  now  to  say  whether 
they  will  go  to  war  or  remain  in  peace. ' ' 22  Many  members  ex- 
pressed their  belief  that  the  President 's  message  was  tantamount 
to  a  declaration  of  war  against  France.23 

!»  The  X  Y  Z  correspondence  was  submitted  to  Congress  April  3,  1798, 
in  response  to  a  resolution  of  the  House  calling  for  the  same,  passed  April 
2.  See  Annals  of  Cong.,  5  Cong.,  II,  1370,  1371. 

20  Writings  of  James  Madison,  VI,  316;  cf.  Writings  of  Thomas  Jeffer- 
son, VII,  235-236. 

21  Annals  of  Cong.,  5  Cong.,  II,  1359. 

22  Ibid.,  1363. 

23  See,  for  example,  the  remarks  of  Giles  and  Gallatin.    Annals  of  Cong., 
5  Cong.,  II,  1323,  1364. 


83]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  83 

In  fact,  the  messages  and  actions  of  the  President  were  con- 
sidered as  so  inflammatory  of  the  war  passions,  that  Mr.  Sprigg 
of  Maryland,  in  order  to  counteract  that  effect,  proposed  a  reso- 
lution "that  it  is  not  expedient  for  the  United  States  to  resort 
to  war  against  the  Republic  of  France. ' ' 24  Such  a  negative 
resolution  was  very  unusual,  and  its  propriety  was  strongly  ques- 
tioned, both  in  Congress  and  out.25  Madison  admitted  that  it 
was  "in  ordinary  cases  .  .  .  certainly  ineligible,"  but  he 
thought  that  cases  might  obviously  arise  for  which  it  was  prop- 
er: "1.  Where  nothing  less  than  a  declaration  of  pacific  in- 
tentions from  the  department  entrusted  with  the  power  of  war, 
will  quiet  the  apprehensions  of  the  constituent  body,  or  remove 
an  uncertainty  which  subjects  one  part  of  them  to  the  speculat- 
ing arts  of  another;  2.  where  it  may  be  a  necessary  antidote  to 
the  hostile  measures  or  language  of  the  Executive  Depart- 
ment .  .  . ;  3.  where  public  measures  or  appearances  may  mis- 
lead another  nation  into  distrust  of  the  real  object  of  them,  the 
error  ought  to  be  corrected;  and  in  our  Government  where  the 
question  of  peace  or  war  lies  with  Congress,  a  satisfactory  ex- 
planation cannot  issue  from  any  other  Department. ' ' 2G  Madison 
and  a  large  number  in  Congress  were  convinced  that  an  obvious 
case  had  arisen,  that  the  President  was  deliberately  trying  to 
lead  Congress  into  a  declaration  of  war. 

Whatever  the  truth  in  these  charges  against  Adams,  the  above- 
mentioned  resolution  failed  of  passage,  and  it  is  clear  that  when 
the  crisis  was  at  its  height  in  1798,  the  President  had  brought 
matters  to  a  point  where  "both  Houses  were  safely  committed  to 
any  policy  of  vigor  which  he  would  recommend. ' ' 27  The  senti- 
ment of  Congress  was  perhaps  best  expressed  by  Mr.  Otis  when 
he  said  that  "the  President  having  declared  his  opinion  that 
there  is  no  hope  of  success  from  that  mission,  he  wished  for  noth- 
ing further  to  convince  him  of  the  propriety  of  going  into  the 
different  defensive  measures  proposed. ' ' 28  Under  the  Presi- 
dent's  leadership,  therefore,  acts  of  hostility  were  authorized,29 

24  Annals  of  Cong.,  5  Cong.,  II,  1319. 

25  See  the  debate  on  the  resolution.  Ibid.,  1319-1357. 

26  Writings  of  James  Madison,  VI,  317-318. 

27  Bassett,  The  Federalist  System,  237. 

28  Annals  of  Cong.,  5  Cong.,  II,  1370. 

29  Acts  of  May  28  and  July  9,  1798.     Ibid.,  5  Cong.,  Ill,  App.,  3733, 
3754. 


84  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [84 

and  for  more  than  two  years  a  ''limited  or  imperfect  war"  was 
carried  on.30  Even  so,  peace  was  undoubtedly  "the  first 
object  of  the  nation,"  as  Jefferson  had  grudgingly  acknowledg- 
ed,31 no  formal  declaration  was  asked  for  or  made,  and  Adams  is 
generally  credited  with  having  "probably  saved  the  country 
from  war  and  from  internal  dissensions."32  Certainly  there 
was  not  a  moment  during  his  entire  administration  when  Adams, 
by  a  word,  might  not  have  secured  from  Congress  a  declaration 
of  war.  He  refrained  from  speaking  the  word,  and  a  disastrous 
war  was  avoided. 

President  Jefferson  was  also  able  to  prevent  a  declaration  of 
war  during  his  administration,  tho  under  somewhat  different 
circumstances.  The  long  series  of  incidents  arising  from 
the  strained  relations  with  Great  Britain  had  culminated  on 
June  22,  1807,  in  the  attack  of  the  Leopard  upon  the  Chesapeake. 
The  country  was  aroused  as  it  had  not  been  since  the  battle  of 
Lexington.33  "Never,"  says  an  eminent  historian,  "had  a  more 
just  cause  for  war  been  given  to  any  people.  Never  had  a  people 
called  more  loudly  for  war. ' ' 34 

Jefferson  believed  that  it  was  strictly  within  the  province  of 
Congress  to  determine  whether  the  outrage  was  a  proper  cause 
of  war,  and  that  the  Executive  should  be  careful  not  to  perform 
any  act  that  would  commit  Congress  to  a  particular  course.  He 
might  therefore  have  summoned  Congress  at  once  to  meet  in 
special  session  to  consider  the  extraordinary  situation  that  had 
arisen.  Jefferson  and  his  Cabinet  knew,  however,  that  were 
Congress  to  meet  while  the  excitement  was  at  its  height,  it  would 
be  difficult  to  prevent  an  immediate  declaration  of  war,  or  at 
least  some  action  that  would  hopelessly  embarrass  the  negotiations 
about  to  begin  at  London.  He  hoped  that  a  delay  would  bring 
cooler  counsels  and  some  chance  for  adjustment,  that,  "having 
taught  so  many  useful  lessons  to  Europe,  we  may  .  .  .  add 
that  of  showing  them  that  there  are  peacable  means  of  repress- 
ing injustice,  by  making  it  to  the  interest  of  the  aggressor  to  do 

so  Bos  v,  Tingy,  4  Ball.,  37  (1800) ;    Gray  v.  United  States,  21  Ct.  of  CL, 
340  (1886),  in  Scott's  Cases  on  International  Law,  452. 
si  Writings,  VII,  149. 

32  Bassett,  op.  cit.,  251;  cf.  also  Bascom,  Growth  of  Nationality,  26. 

33  Writings  of  Thomas  Jefferson,  IX,  105. 

SyncMaster,  History  of  the  People  of  the  United  States,  III,  262. 


85]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  85 

what  is  just,  and  abstain  from  future  wrong. ' ' 35  He  therefore 
issued  a  proclamation  setting  forth  the  grievances  of  the  United 
States  and  declaring  the  ports  closed  to  the  armed  ships  of  Eng- 
land;36 but,  under  the  pretence  that  Washington  was  too  sickly 
a  place  for  Congress  to  come  to  in  the  summer,  its  date  for  as- 
sembling was  fixed  at  October  26.37 

The  delay  proved  useful.  The  British  government  sent  a 
minister  to  adjust  the  Chesapeake  affair,  recalled  the  Admiral 
who  gave  the  order  for  the  attack,  and  disavowed  his  act.38  Thus 
Jefferson,  if  he  did  not  succeed  in  finally  averting  a  war  with 
Great  Britain,  at  least,  by  refusing  to  summon  Congress  at  the 
moment  of  excitement,  delayed  the  war  for  several  years. 

President  Madison  aroused  the  war  passion  of  Congress  in 
1812  by  submitting  to  it  the  "Henry  correspondence,"  which 
aimed  to  show  that  Great  Britain  was  attempting  to  sever  the 
New  England  states  from  the  Union.39  The  British  Government 
denied  any  connection  with  the  Henry  mission ;  no  evidence  was 
produced  to  show  that  the  New  England  states  had  contemplated 
any  plan  of  secession ;  and  the  Federalists  charged  that  the  en- 
tire affair  had  been  trumped  up  by  Madison  in  order  to  augment 
the  feeling  for  war,  evidence  being  produced  to  show  that  the 
President  had  paid  $50,000  for  the  papers.40  Madison,  however, 
was  slow  in  taking  advantage  of  the  war  passion  he  had  thus 
aroused.  Congress,  now  thoroly  in  favor  of  war,  fumed  and  fret- 
ted at  the  delay,  but  hesitated  to  act  without  a  recommendation 
from  the  President.  Finally,  a  delegation  from  Congress,  headed 
by  Clay,  waited  upon  the  President  and  declared  the  readiness 
of  the  majority  in  Congress  to  vote  the  war,  if  recommended.41 

ss  Writings,  IX,  87-88. 

so  Richardson,  op.  tit.,  I,  422. 

37  Ibid.,  424. 

ss  McMaster,  op.  tit.,  Ill,  263,  269-270. 

30  For  the  Henry  correspondence,  see  Annals  of  Cong,,  12  Cong.,  I,  1162- 
1181;  for  Madison's  message,  Richardson,  op.  tit.,  I,  498. 

*o  Updyke,  Diplomacy  of  the  War  of  1812,  126-127. 

*i  Writings  of  James  Madison,  VIII,  192,  n;  Joseph  Gale's  account  in 
Am.  Hist.  Eev.,  XIII,  309;  cf.  also  accounts  in  Hildreth,  History  of  Hie 
United  States,  VI,  298;  VonHolst,  Constitutional  and  Political  History  of 
the  United  States,  I,  230 ;.  McMaster,  op.  tit.,  Ill,  448  —  all  to  the  effect 
that  Madison  was  promised  a  renomination  if  he  would  send  Congress  a  war 


86  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [86 

Thereupon  Madison  sent  a  special  message  June  1,  1812,  recom- 
mending war,42  to  which  Congress  responded  by  passing  the  dec- 
laration on  June  18. 

The  significance  of  this  is  not  so  much  in  the  apparent  domina- 
tion of  the  President  by  the  majority  element  in  Congress,  as  in 
the  fact  that  Congress,  even  tho  fully  convinced  of  the  necessity 
for  war  and  fully  determined  upon  such  action,  yet  found  itself 
unwilling  to  act  without  first  securing  the  recommendation  of 
the  President.  Had  the  President  been  less  hasty  in  passing 
judgment  upon,  and  submitting  to  Congress,  the  Henry  corres- 
pondence, the  authenticity  of  which  had  at  least  not  been  thoroly 
established;  had  he  delayed  his  war  message  a  little  longer,  the 
new  conciliatory  attitude  of  the  British  Government  might  have 
been  met  and  the  war  of  1812  very  likely  altogether  averted. 
These  are  the  facts  that  John  Adams  probably  had  in  mind  when 
he  wrote  in  1815:  "Mr.  Madison's  administration  has  proved 
great  points,  long  disputed  in  Europe  and  America. 

1.  He  has  proved  that  an  administration  under  our  present 
Constitution  can  declare  war. 

2.  That  it  can  make  peace.     .     . "  43 

President  Polk  came  into  office  in  1845  with  the  avowed  pur- 
pose of  acquiring  California  and,  later,  also  New  Mexico.  He 
tried  first  to  secure  them  peacefully  by  purchase,  and  for  that 
purpose  sought  an  appropriation  of  a  million  dollars  from  Con- 
gress, concealing  the  real  object  under  the  euphemistic  phrases 
of  "effecting  an  adjustment  of  our  differences  with  Mexico," 
and  ' '  the  conclusion  of  a  Treaty  of  boundary. ' ' 44  Failing  in 
this,  Polk,  as  early  as  February,  1846,  declared  himself  in  favor 
of  "strong  measures"  against  Mexico,  and  from  that  time  was 
steadily  determined  on  war.45  The  sending  of  a  war  message 
was  postponed,  however,  partly  because  of  the  unsettled  state  of 
the  negotiations  with  Great  Britain  over  the  Oregon  question, 
but  probably  rather  because  Polk  was  seeking  something  that 
might  serve  as  a  plausible  cause  for  war. 

*z  Writings,  VIII,  192-200 ;  Bichardson,  op.  tit.,  I,  499-505. 

*3  Life  and  Works  of  John  Adams,  X,  167-168. 

*4McMaster,  op.  cit.,  VII,  432,  439;  Beeves,  American  Diplomacy  under 
Tyler  and  Polk,  272 ;  Diary  of  James  E.  Polk,  I,  34-35,  303,  306-308,  310- 
313,  317. 

46  Beeves,  op.  cit.,  284,  287,  288,  294;  Bhodes,  Historical  Essays,  211; 
Diary  of  James  K.  Polk,  I,  233-234,  319,  337,  343. 


87]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAS  87 

Certain  sundry  claims  of  American  citizens  upon  Mexico  had 
been  a  matter  of  difficulty  and  negotiation  between  the  two  gov- 
ernments since  1836,46  and  were  still  largely  unsettled.  The 
President  now  hit  upon  these  claims  as  the  "aggravated  wrongs" 
which  should  be  the  basis  for  the  complaints  against  Mexico,41 
altho  "many  of  the  claims  were  exorbitant  and  some  of  them 
fraudulent. ' ' 48  Meanwhile,  General  Taylor  had  been  sent  to 
occupy  the  disputed  territory  beyond  the  Nueces  River,  had  ad- 
vanced to  a  position  opposite  Matamoras  where  a  strong  Mexi- 
can force  was  located,  and  Polk  seemed  to  think  there  was  some 
hope  of  a  collision  in  the  near  future,49  which  would  give  him 
more  satisfactory  ground  for  his  war  message. 

For  some  time,  however,  no  hostilities  occurred,  the  President 
became  impatient  of  delay,  and  on  May  9  the  Cabinet  agreed  that 
a  message  recommending  war  should  be  prepared  and  submitted 
by  the  following  Tuesday  (May  12),  whether  the  Mexican  forces 
had  committed  any  act  of  hostility  against  Taylor  or  not.  Bu- 
chanan, the  Secretary  of  State,  had  already  drawn  up  a  state- 
ment of  the  causes  of  complaint,  the  President  had  decided  to 
substitute  practically  the  precise  language  he  himself  had  used 
in  dealing  with  the  Mexican  claims  in  his  annual  message  of  the 
year  before,  when  suddenly  the  situation  was  changed  by  the  re- 
ceipt of  news  that  same  evening  from  Taylor  that  the  Mexicans 
had  attacked  and  hostilities  had  begun.  The  Cabinet  was  immed- 
iately summoned  again,  and  it  was  agreed  that  a  message  should 
be  sent  recommending  ' '  vigorous  and  prompt  measures  to  enable 
the  Executive  to  prosecute  the  war."  50 

Folk's  opportunity  had  come.  He  recognized  that  "public  ex- 
citement in  and  out  of  Congress  was  very  naturally  very  great ; ' ' 
unlike  Jefferson,  he  determined  to  play  upon  that  feeling,  so  he 
spent  Sunday  in  writing  his  message,  and  on  Monday,  May  11, 
it  was  submitted  to  Congress.  There  was  now  no  mention  of  the 
long-unsettled  claims  as  the  "aggravated  wrongs"  borne  by  the 
United  States ;  the  entire  emphasis  was  laid  on  the  fact  that  the 
Mexicans  had  attacked  American  forces  and  shed  American  blood 

*«  Beeves,  op.  tit.,  76,  86,  93,  96,  107-108. 

47  Diary  of  James  K.  Polk,  I,  363,  377,  382. 

«  Beeves,  op.  cit.,  86. 

4»  Diary  of  James  K.  Polk,  I,  380  (May  6,  1846). 

so  Ibid.,  384-386. 


88  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [88 

on  American  soil,  and  that  since  war  had  thus  been  begun  by 
Mexico,  the  issue  must  be  accepted  and  hostilities  carried  on  with 
vigor.51 

In  spite  of  the  fact  that  there  had  been,  and  still  was,  bitter 
opposition  in  Congress  to  a  war  with  Mexico,52  the  President's 
message  was  quickly  responded  to.  In  two  hours,  of  which  time 
one  and  a  half  hours  were  occupied  in  reading  the  documents  ac- 
companying the  President's  message,  the  House  of  Representa- 
tives passed  the  bill  reciting  that  war  existed  by  act  of  Mexico 
and  providing  for  the  support  of  hostilities.53  The  Senate  could 
not  be  hurried  quite  so  rapidly,  but  by  evening  of  the  next  day 
(May  12),  it  had  also  given  its  sanction;  and  the  President's  ac- 
tions were  sustained. 

Whether  or  not  Congress  would  have  sustained  the  President 
and  authorized  hostilities,  had  not  the  news  from  Taylor  changed 
the  situation  from  an  admitted  war  of  aggression  to  an  osten- 
sible war  of  defense,  it  is  impossible  to  say  with  any  degree  of 
certainty.  Certainly,  as  Reeves  suggests,  "Taylor's  skirmish 
with  the  Mexicans  was  an  occurrence  that  saved  Polk  from  a 
dangerous  situation. ' ' 54  Nevertheless,  Polk  had  been  able  to  so 
handle  matters  as  to  make  an  armed  collision  almost  inevitable, 
and  he  took  advantage  of  the  excitement  thus  aroused  to  secure 
from  an  unwilling  Congress  a  strong  backing  for  his  war  policy. 
His  actions,  says  Rhodes,  "illustrate  the  power  inherent  in  the 
executive  office. ' ' 55  Certainly,  but  for  the  action  of  the  President, 
the  war  would  not  have  been  sanctioned  by  Congress ;  because  of 
the  action  of  the  President,  the  war  was  sanctioned,  and  the 
objects  sought  by  the  President  were  obtained. 

Had  President  Grant  been  eager  for  war  with  Great  Britain, 
a  mere  message  and  recommendation  from  him  to  that  effect 
would  undoubtedly  have  brought  on  such  a  conflict.  The  unani- 
mous passage  by  the  House  of  Representatives  in  1866  of  a  bill 
modifying  the  neutrality  laws  in  such  a  way  as  to  permit  the 

si  Richardson,  op.  cit.,  TV,  437-443. 

62  A  motion  in  the  House  of  Representatives  for  a  formal  declaration  of 
war  was  rejected  by  a  large  majority.  Cong.  Globe,  29  Cong.,  1  Sess.,  792, 
794. 

53  Statement  of  Senator  Benton.     Diary  of  James  K.  Polk,  I,  392. 

54  Reeves,  op.  cit.,  298. 

55  Historical  Essays,  212. 


89]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  89 

sale  of  war-ships  and  munitions  to  other  powers  ;56  the  sympathy 
and  support  given  to  the  Fenian  movement  aginst  Canada ;  the 
resolution  proposed  in  the  Senate  in  1867  for  the  recognition  to 
Abyssinia  during  its  war  with  Great  Britain  of  the  same  rights 
which  Great  Britain  had  recognized  to  the  Confederacy;57  the 
action  of  the  Senate  in  1869  in  rejecting  by  a  vote  of  54-1  the 
treaty  providing  for  a  joint  high  commission  to  pass  upon  the 
claims  of  subjects  of  either  government  against  the  other ; 58 
speeches  such  as  that  of  Senator  Sumner  delivered  during  the 
consideration  of  the  above-mentioned  treaty;59  the  angry  and 
excited  discussion  in  the  press  of  the  two  countries  —  these  vari- 
ous incidents  showed  that  the  bitter  feeling  aroused  against  Great 
Britain  during  the  Civil  War  had  assumed  hostile  form  ;60  that, 
as  an  eminent  authority  has  expressed  it,  ' '  in  the  opinion  of  the 
majority,  the  country  had  just  cause  for  war  in  the  escape  of  the 
Alabama  and  the  Florida. '  '61 

The  President  and  his  wise  Secretary  of  State,  Hamilton  Fish, 
chose  to  disregard  this  sentiment  of  the  country  and  of  Congress 
for  an  unyielding  and  belligerent  attitude  towards  Great  Britain. 
On  the  other  hand,  the  two  points  in  the  American  case  which 
had  given  special  offense  to  the  British  were  allowed  to  recede 
into  the  background,  if  not  conceded  altogether,62  negotiations 
were  persistently  carried  on  for  the  arbitration  of  the  Alabama 
and  Florida  claims,  and  the  peace  was  preserved. 

President  Cleveland,  on  the  other  hand,  very  nearly  precipita- 
ted war  with  England,  when  in  his  special  message  of  December 
17,  1895,63  he  made  his  strong  declaration  with  regard  to  the 
Venezuelan  boundary  situation.  The  President  stated  that  arbi- 

56  Cong.  Globe,  39  Cong.,  1  Sess.,  Pt.  V,  4194,  4197.  See  See.  10,  which 
was  the  addition.     The  debate  on  the  bill  shows  that  it  was  aimed  particu- 
larly at  Great  Britain. 

57  Ibid.,  40  Cong.,  1  Sess.,  810. 

58  Sen.  Ex.  Jour.,  XVII,  163. 

59  On  April  13,  1869.  Works  of  Charles  Sumner,  XIII,  53-93. 

eo  Cf.  Dunning,  Reconstruction:    Political  and  Economic,  160-162. 

ei  Rhodes,  Historical  Essays,  218-219. 

62  These  were  the  claim  that  wrong  had  been  done  to  the  United  States 
by  the  recognition  of  the  Confederates  as  belligerents,  and  the  demand  for 
compensation  for  ' '  national "  or  "  indirect ' '  losses.  See  Dunning,  op.  cit., 
167. 

es  Eichardson,  op.  cit.,  IX,  655-658. 


90  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [90 

tration  had  been  declined  by  Great  Britain,  and  proposed  an 
independent  inquiry  and  report  by  a  strictly  American  commis- 
sion. ''When  such  report  is  made  and  accepted,"  he  said,  "it 
will,  in  my  opinion,  be  the  duty  of  the  United  States  to  resist 
by  every  means  in  its  power,  as  a  willful  aggression  upon  its 
rights  and  interests,  the  appropriation  by  Great  Britain  of  any 
lands  or  the  exercise  of  any  governmental  jurisdiction  over  any 
territory  which  after  investigation  we  have  determined  of  right 
belongs  to  Venezuela. ' ' 64  Tho  the  country  had  up  to  this  time 
been  ignorant  of  the  peremptory  demands  of  the  administration, 
and  the  message  threatening  war  came  therefore  as  an  unexpect- 
ed shock;65  tho  Congress  and  the  President  had  heretofore 
quarreled  over  almost  every  question  of  consequence,  Congress 
now  sustained  the  President  in  his  demands  and  passed  almost 
without  debate,  the  bill  for  the  appointment  of  the  commission 
asked  for.66 

It  is  not  important  in  this  connection  whether  or  not  the  Presi- 
dent had  made  a  valid  interpretation  and  a  correct  application 
of  the  Monroe  Doctrine.  The  important  thing  to  notice  is  that 
he  had  raised  an  issue  which  meant  simply  this,  that  if  arbitra- 
tion were  refused  by  Great  Britain,  the  United  States  would  mark 
the  boundaries  of  one  of  her  colonies  and  compel  the  mother- 
country  to  accept  the  limits  so  prescribed ;  that  a  hostile  Congress 
had  accepted  without  question  the  issue  so  raised ;  and  that  the 
President  had  thereby  placed  the  United  States  and  Great  Brit- 
ain unexpectedly  in  a  position  where  one  or  the  other  must  open- 
ly recede  from  its  announced  intention,  if  a  conflict  was  to  be 
averted.  A  conflict  was  averted,  but  only  by  reason  of  England's 
conciliatory  agreement  to  arbitrate ;  and  it  is  worthy  of  note  that, 
as  one  authority  has  expressed  it,  "only  in  the  case  where  he 
(Cleveland)  was  led,  by  whatever  influences,  to  offer  a  gross  in- 
sult to  Great  Britain,  such  as  would  not  have  been  borne  for  a 
moment  by  this  country  from  any  other  without  prompt  resent- 
ment, did  he  receive  the  unanimous  support  of  both  houses. ' ' 67 

«*  Bichardson,  op.  cit.,  IX,  658. 

65  Dewey,  National  Problems,  308;  Latane,  From  Isolation  to  Leader- 
ship, 49. 

e«Cong.  Record,  XXVIII,  Pt.  I  (54  Cong.,  1  Bess.),  234-235,  255-265; 
Dewey,  op.  cit.,  310. 

67  Bradford,  TJte  Lesson  of  Popular  Government,  I,  358,  n.     Other  au- 


91]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  91 

In  the  case  of  the  difficulties  with  Spain  over  the  Cuban  ques- 
tion, it  has  been  said  that  "Presidents  Cleveland  and  McKinley 
kept  the  national  legislature  from  a  declaration  of  hostilities  for 
more  than  two  years  before  final  action  was  taken. "  68  It  is  true 
that  the  temper  of  Congress  was  for  war  long  before  the  Presi- 
dent was  ready  to  recommend  such  a  step ;  it  is  likewise  undoubt- 
edly true  that  the  President  might  have  delayed  such  recommen- 
dation still  longer,  and  possibly  —  almost  certainly  —  have  avert- 
ed war  altogether. 

Congress  in  1890  had,  by  concurrent  resolution,  requested  the 
President ' '  to  invite  from  time  to  time,  as  fit  occasions  may  arise, 
negotiations  with  any  government  with  which  the  United  States 
has  or  may  have  diplomatic  relations,  to  the  end  that  any  differ- 
ences or  disputes  arising  between  the  two  governments  which  can- 
not be  adjusted  by  diplomatic  agency  may  be  referred  to  arbitra- 
tion, and  be  peaceably  adjusted  by  such  means. '  '69  In  the  spring 
of  1898  Spain  had  made  several  concessions,  which,  according  to 
eminent  authority,  "fully  covered"  the  expressed  wishes  of  the 
United  States  for  Cuba,70  and  on  March  31,  she  proposed  arbitra- 
tion of  the  Maine  controversy.71  General  Woodford,  the  Amer- 
ican minister  to  Spain,  evidently  did  not  consider  the  situation 
hopeless,  for  he  wrote :  "I  know  that  the  Queen  and  her  present 
ministry  sincerely  desire  peace  and  that  the  Spanish  people  de- 
sire peace,  and  if  you  can  still  give  me  time  and  liberty  of  action 
I  will  get  for  you  the  peace  you  desire  so  much  and  for  which 
you  have  labored  so  hard ; "  72  and  on  April  10,  in  a  personal 
appeal  to  the  President :  "I  hope  that  nothing  will  now  be  done 
to  humiliate  Spain,  as  I  am  satisfied  that  the  present  Government 
is  going,  and  is  loyally  ready  to  go,  as  fast  and  as  far  as  it 
can."73 

thorities  say  that  President  Cleveland,  in  this  instance,  recommended  "de- 
mands Great  Britain  could  hardly  regard  as  anything  but  unfriendly." 
Ogg  &  Beard,  National  Governments  and  the  World  War,  102. 

68  Young,  The  New  American  Government  and  Its  Work,  27. 

69  Yale  Eev.,  IX,  402. 

70  For  these  concessions  of  March  30,  March  31,  and  April  9,  see  For. 
Eel.  1898,  725,  762,  750;    cf.  also  Benton,  International  Law  and  Diplomacy 
of  the  Spanish  American  War,  83-91. 

71  Benton,  op.  cit.,  85. 
"  For.  Eel.  1898,  732. 

id.,  747. 


92  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [92 

But  neither  the  above-mentioned  resolution  of  Congress,  the 
overtures  of  Spain,  the  proffered  mediation  of  the  Powers,74  nor 
the  pleading  of  the  American  minister,  had  any  effect  on  the 
President.  No  reply  was  made  to  the  offer  of  arbitration,75  and  on 
April  11,  the  message  recommending  war  went  to  Congress,  with 
the  usual  and  natural  response.  The  vital  question,  says  Benton, 
is  ''whether  the  President  did  not  yield  prematurely  and  whether 
he  had  exhausted  the  resources  of  diplomacy ; "  76  he  answers 
that  question  by  saying  that  in  the  opinion  of  nearly  all  writers 
on  international  law  the  particular  form  of  intervention  in  1898 
was  "unfortunate,  irregular,  precipitate,  and  unjust  to  Spain."77 

The  influence  of  President  Wilson  with  regard  to  the  events  of 
the  recent  world  war,  and  the  readiness  of  Congress  to  follow 
his  recommendations  —  to  be  a  "peace  Congress"  when  the 
President  desired  peace,  to  be  a  "war  Congress"  when  the 
President  recommended  war  —  are  too  evident  to  require  any  ex- 
tended comment.  Altho  basing  his  claim  for  re-election  in  1916 
largely  on  the  ground  that  he  had  ' '  kept  us  out  of  war, ' '  with  the 
presumption  that  he  would  continue  to  do  so  in  the  future,  and 
carrying  with  him  a  Congress  presumably  committed  to  the  same 
policy;  and  altho  standing,  as  late  as  January,  1917,  for 
' '  peace  without  victory, ' ' 78  President  Wilson  felt  compelled  by 
the  turn  of  events  to  recommend  war  upon  Germany  in  his  ad- 
dress of  April  2,  a  recommendation  at  once  adopted  by  the 
"peace  Congress"  with  very  little  opposition.79 

Altho  the  governments  allied  with  Germany  could  with  diffi- 
culty be  distinguished  in  method  and  policy  from  the  government 
of  Germany  —  the  Austro-Hungarian  government  especially 
having  openly  avowed  its  endorsement  of  Germany's  submarine 
policy,  and  its  ambassador  having  been  implicated  in  plots  to  des- 

i*  On  April  6,  the  Ambassadors  of  Great  Britain,  Germany,  Austria, 
France,  Italy,  and  Russia,  united  in  a  personal  appeal  to  President  Mc- 
Kinley  for  a  peaceful  adjustment.  Two  days  later,  even  stronger  repre- 
sentations were  made  at  Madrid.  Benton,  op.  tit.,  89-90. 

75  President  McKinley,  in  his  message  to  Congress,  dismissed  this  offer 
of  arbitration  with  these  laconic  words:  "I  made  no  reply." 

76  Benton,  op.  tit.,  95. 
TT  Ibid.,  108. 

78  gee  his  address  to  the  Senate,  Jan.  22,  1917.  MeKinley,  Collected  Ma- 
terials for  the  Study  of  the  War  (1st  ed.),  9-11. 

79  Joint  Eesolution  of  Apr.  6,  1917.  Ibid.,  137. 


93]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  93 

troy  our  factories — ,  the  President  was  not  at  that  time  ready 
to  make  war  upon  any  of  them,  because,  as  he  said,  "they  have 
not  made  war  upon  us  or  challenged  us  to  defend  our  right  and 
our  honor. ' ' 80  Congress  therefore  took  no  action  towards  de- 
claring war  against  these  countries. 

However,  by  December  of  the  same  year,  President  Wilson  had 
discovered  that  "one  very  embarrassing  obstacle  that  stands  in 
our  way  is  that  we  are  at  war  with  Germany,  but  not  with  her 
allies."  He  therefore  recommended  a  declaration  of  a  state  of 
war  with  Austria-Hungary,  that  nation  being  "not  her  own  mis- 
tress, but  simply  the  vassal  of  the  German  Government."  The 
President  admitted  that  the  same  logic  would  seem  to  demand  a 
declaration  of  war  also  against  Turkey  and  Bulgaria,  since  "they 
also  are  the  tools  of  Germany,"  but  he  declined  to  recommend 
such  action  against  these  countries,  because  "they  are  mere 
tools,  and  do  not  yet  stand  in  the  direct  path  of  our  necessary  ac- 
tion."81 In  each  case  Congress  followed  the  recommendation  of 
the  President  without  question,  declaring  war  upon  Austria- 
Hungary,82  and,  despite  some  feeling  that  Turkey  and  Bulgaria 
should  have  been  included,83  no  declaration  was  ever  made  against 
those  countries.84 

These  examples  and  incidents  from  the  history  ,pf  our  own 
country  illustrate  clearly  the  very  important  position  conceded 
to  the  President  with  regard  to  a  declaration  of  war.  They  would 
seem  to  bear  out  the  statement  of  one  of  our  congressmen,  when 
he  said  in  a  recent  speech:  "History  shows  .  .  that  while 
Congress  does  possess  that  power  (to  declare  war),  in  reality,  the 
President  exercises  it.  Congress  has  always  declared  war  when 
the  President  desired  war,  and  Congress  has  never  attempted  to 
declare  war  unless  the  President  wanted  war.  That  was  true  of 
the  war  of  1812.  It  was  true  of  the  Mexican  war.  It  was  true 
of  the  Spanish-American  war.  It  was  true  of  this  war.  It  will 

so  Address  to  Congress,  Apr.  2,  1917.    McKinley,  op.  cit.,  15. 

81  Address  to  Congress,  Dec.  4,  1917.  N.  Y.  Times  Current  Hist.  Mag., 
VII,  66-67   (Jan.,  1918).     For  further  reasons  why  Turkey  and  Bulgaria 
were  omitted,  see  ibid.,  74. 

82  Joint  Eesolution  of  Dec.  7,  1917.  Ibid.,  69. 
ss  Cf.  attitude  of  Senator  Lodge.  Ib  id.,  75. 

8*  Diplomatic  relations  were  broken  off  with  Turkey,  Apr.  20,  1917,  but 
the  initiative  had  been  taken  by  that  country;  with  Bulgaria  relations  were 
not  even  severed  during  the  entire  course  of  the  war. 


94  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [94 

probably  be  true  of  every  war  in  which  the  nation  engages  so 
long  as  the  present  method  of  declaring  war  continues. ' ' 85 

The  power  of  the  President  to  recommend  war  and  to  com- 
municate facts  as  a  basis  for  such  recommendation  gives  him  also 
an  opportunity  to  set  forth  the  grounds  and  to  explain  the  pur- 
poses of  the  nation  in  entering  upon  war.  Since  the  ratifica- 
tion of  the  Hague  Convention  of  1907,  such  a  statement  of  rea- 
sons is  required  before  the  beginning  of  hostilities.  These  are  the 
terms  of  the  article  in  question :  ' '  The  Contracting  Parties  rec- 
ognize that  hostilities  between  them  must  not  commence  without 
a  previous  and  unequivocal  warning,  which  shall  take  the  form 
either  of  a  declaration  of  war,  giving  reasons,  or  of  an  ultima- 
tum with  a  conditional  declaration  of  war. " 86  It  would  seem, 
from  the  language  of  the  article,  that  the  body  in  any  country  to 
which  is  entrusted  the  power  of  declaring  the  war  was  considered 
the  proper  body  to  specify  the  reasons  for  such  declaration. 

As  a  matter  of  fact,  the  uniform  practise  in  the  United  States 
has  been  otherwise.  Even  before  the  adoption  of  the  Hague  Con- 
vention, the  President,  in  his  messages  to  Congress  recommend- 
ing war,  has  always  stated  what  seemed  to  him  to  be  the  reason- 
able grounds  for  such  action.  There  is  no  doubt  that  Congress, 
under  its  power  to  pass  the  declaration,  might  likewise  have  ex- 
pressed its  reasons,87  which  might  agree  with  those  of  the  Presi- 
dent, or  might  differ,  either  wholly  or  in  part.  The  President 

85  Congressman  Dill.  Cong.  Record,  65  Cong.,  3  Sess.  (Jan.  21,  1919), 
1824;  see  also  an  editorial  in  The  Nation,  Mar.  1,  1919;  ef.  Finley  &  San- 
derson, The  American  Executive  and  Executive  Methods,  280 ;  Bryce,  Amer- 
ican Commonwealth,  I,  54;  Bradford,  The  Lesson  of  Popular  Government, 
I,  359;  Case,  Constitutional  History  of  the  United  States,  232-233;  Young, 
The  New  American  Government  and  Its  Worlc,  27;  Sehouler,  Constitutional 
Studies,  138. 

se  Convention  relative  to  the  Commencement  of  Hostilities,  Art.  1.  Hig- 
gins,  The  Hague  Peace  Conferences,  198. 

ST  "It  may  be  said.  .  .  that  this  power  (of  declaring  war)  naturally 
includes  the  right  of  judging  whether  the  nation  is  or  is  not  under  obliga- 
tions to  make  war.  .  .  However  true  this  position  may  be,  it  will  not 
follow  that  the  executive  is  in  any  case  excluded  from  a  similar  right  of 
judgment,  in  the  execution  of  its  own  functions."  Works  of  Alexander 
Hamilton,  IV,  142.  ' '  The  power  to  judge  of  the  causes  of  war,  as  involved 
in  the  power  to  declare  war,  is  expressly  vested,  where  all  other  legislative 
powers  are  vested,  that  is,  in  the  congress  of  the  United  States. ' '  Writings 
of  James  Madison,  VI,  154 ;  cf.  ibid.,  153,  161. 


95]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  95 

would  be  bound  to  accept  or  reject  the  declaration  as  passed  by 
Congress,  as  a  whole.88  He  could  not  accept  the  conclusion  and 
disapprove  of  the  grounds  given  for  the  action.  Congress  has, 
however,  contented  itself  with  a  mere  formal  declaration  of  war 
or  a  formal  recognition  of  a  state  of  war  as  already  existing, 
without  adding  any  specific  statement  of  reasons  or  objects.  Long 
reports  have  been  made  in  every  case  by  the  Foreign  Relations 
committees  of  each  house,  justifying  the  action  about  to  be  taken, 
but  in  no  case  has  the  statement  of  reasons  embodied  in  these  re- 
ports been  incorporated  into  the  declaration  itself,  not  even  since 
the  adoption  of  the  Hague  Convention.  Congress,  in  thus  refus- 
ing or  neglecting  to  give  a  specific  statement  of  its  own,  has  ap- 
parently recognized  the  President  as  having  the  right  and  as  be- 
ing the  most  suitable  authority  to  set  forth  to  the  world  the  griev- 
ances of  the  nation.  At  all  events,  the  President,  rather  than 
Congress,  is  now  regarded,  both  at  home  and  abroad,  as  the 
spokesman  of  the  nation  with  regard  to  the  reasons  and  objects  of 
a  war,  and  his  statements  have  been  generally  accepted  as  com- 
mitting the  nation  to  the  policies  therein  laid  down. 

The  power  of  the  President  with  regard  to  a  declaration  of  war 
does  not  end  with  the  functions  of  communication  of  informa- 
tion, and  of  recommendation.  A  declaration  of  war,  like  any 
other  bill,  order,  resolution,  or  vote  requiring  the  concurrence  of 
both  houses  of  Congress,  must  be  submitted  to  the  President  for 
his  approval  or  disapproval.89  If  it  were  possible  to  imagine 
Congress  as  passing  a  declaration  of  war  without  first  being  cer- 
tain of  the  President's  approval,  or  in  direct  opposition  to  his 
known  views  (as  is  often  done  with  other  measures),  the  Presi- 
dent could  exercise  his  power  of  veto  and  thus  prevent  the  dec- 
laration from  going  into  effect.  Theoretically,  Congress  might 
in  turn,  by  a  two-thirds  majority,  declare  war  even  against  the 
wishes  of  the  President.90  Strictly  speaking,  it  is  true,  as  an  em- 
inent senator  has  said,  that  "the  President  not  only  cannot  de- 
clare war,  and  it  is  not  only  conferred  in  terms  upon  Congress, 

ss  8.  E.  Baldwin,  op.  tit.,  Am.  Jour.  Int.  Law,  XII,  10. 

89  Constitution,  Art.  I,  Sec.  7,  Cl.  2,  3.  The  declarations  in  the  cases  of 
the  War  of  1812,  the  Mexican  War  and  the  Spanish-American  War  were 
passed  in  the  form  of  Acts  of  Congress;  those  against  Germany  and  Aus- 
tria-Hungary in  the  form  of  joint  resolutions. 

»°  See  Schouler,  Constitutional  Studies,  137. 


96  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [96 

but  even  if  the  President  should  be  opposed  to  a  proposed  war, 
two-thirds  of  each  Branch  can  declare  war.  It  would  not  require 
his  approval.  There  is  the  most  important  of  all  foreign  rela- 
tions. It  does  not  belong  to  the  President. "  91  In  practise,  how- 
ever, such  a  situation  cannot  be  imagined.  The  successful  prose- 
cution of  a  war  would  be  impossible  without  the  hearty  coopera- 
tion of  that  department  of  the  government  which  has  in  its  sphere 
the  actual  direction  and  management  of  the  war.  Consequently, 
tho  Congress  technically  has  the  power,  it  has  chosen  to  fol- 
low rather  than  to  lead  with  respect  to  a  declaration  of  war.  It 
always  has  sought,  and  it  is  safe  to  assume  that  it  always  will 
seek,  to  assure  itself  of  the  President's  approval  before  passing 
or  even  proposing  a  declaration  of  war.92 

After  the  enactment  and  approval  of  a  declaration  of  war,  it 
becomes  the  right  and  duty  of  the  President  to  give  public  no- 
tice of  it  to  all  neutral  powers.93  The  Hague  Convention  of  1907 
requires  such  notice  to  neutrals,  without  specifying  by  whom  it 
is  to  be  given.94  The  President,  however,  as  the  sole  organ  of 
communication  with  foreign  powers,  is  the  natural  authority  for 
the  exercise  of  that  function,  and  there  has  been  no  dispute  as  to 
his  right  or  duty  in  that  respect.  The  exercise  of  the  function  is 
of  considerable  importance,  since  by  the  article  referred  to  a 
state  of  war  is  to  be  regarded  as  of  no  effect  towards  neutrals 
until  they  have  received  such  notification,95  and  hence  a  delay  or 
neglect  in  fulfilling  the  requirement  of  the  Convention  might  af- 

9i  Senator  Bacon.    Cong.  Record,  XL,  Pt.  3  (59  Cong.,  1  Sess.),  2132. 

92 ' '  Certain  it  is  that  the  war  with  France  was  begun  that  way,  Con- 
gress following  the  lead  of,  and  seeking  knowledge  from,  the  President  at 
every  step. ' '  Sen.  Doc.  No.  56,  54  Cong.,  2  Sess.,  17.  A  recent  newspaper 
dispatch  with  regard  to  the  Mexican  situation  is  significant  as  illustrating 
the  absolute  subserviency  of  even  a  hostile  Congress  in  such  matters :  ' '  Presi- 
dent Wilson  is  in  complete  control  of  the  direction  of  American,  policy  in 
dealing  with  Mexico.  .  .  If  President  Wilson  should  indicate  that  Con- 
gress should  adopt  the  Fall  resolution  requesting  a  severance  of  diplomatic 
relations  with  Mexico  and  withdrawal  of  recognition  of  Carranza,  there 
would  be  little  opposition  to  the  passage  of  the  measure.  If,  however,  he 
should  oppose  such  a  step,  the  resolution  will  be  nlbdified  to  conform  to  his 
views  or  shelved."  Chicago  Tribune  (Staff  Correspondence),  Dec.  8,  1919. 

93  S.  E.  Baldwin,  op.  ait.,  Am.  Jour.  Int.  Law,  XII,  11. 

»*  Convention  relative  to  the  Commencement  of  Hostilities,  Art.  2.  Hig- 
gins,  op.  cit.,  199. 

»5  Ibid. 


97]  POWERS  WITH  REGARD  TO  A  DECLARATION  OF  WAR  97 

feet  the  validity  of  captures  at  sea  and  other  warlike  operations 
involving  neutral  rights.  The  chief  ends  of  such  announcement 
to  neutrals  are,  therefore,  to  give  formal  notice  of  the  fact  of  the 
declaration  and  the  time  of  its  going  into  effect. 

In  addition  to  notifying  neutrals,  the  President  usually  also 
gives  official  notice  of  the  existence  of  a  state  of  war  to  the  citi- 
zens of  this  country.  This  he  does  by  means  of  a  public  procla- 
mation. Presidents  Madison  and  Polk  both  issued  such  proclama- 
tions, merely  announcing  to  the  country  that  war  existed  by  act 
of  Congress  and  exhorting  the  people  to  exert  themselves  "in 
preserving  order,  in  promoting  concord,  in  maintaining  the  au- 
thority and  the  efficacy  of  the  laws,  and  in  supporting  and  in- 
vigorating all  the  measures  which  may  be  adopted  by  the  con- 
stituted authorities  for  obtaining  a  speedy,  a  just,  and  an  hon- 
orable peace. ' ' 96 

There  does  not  appear  to  be  any  express  constitutional  or  stat- 
utory authority  for  the  issuance  of  such  proclamations,  tho 
if  any  were  needed,  it  might  be  implied  from  the  power  to  "take 
care  that  the  laws  be  faithfully  executed. ' '"  It  may  also  be  in- 
ferred from  an  act  passed  in  1798.  This  act  provided,  among 
other  things,  for  the  removal  of  enemy  aliens  "whenever  there 
is  declared  a  state  of  war  between  the  United  States  and  any  for- 
eign nation  or  government,  or  any  invasion  or  predatory  incur- 
sion is  perpetrated,  attempted,  or  threatened  against  the  territory 
of  the  United  States,  by  any  foreign  nation  or  government,  and 
the  President  makes  public  proclamation  of  the  event. ' '  It  fur- 
ther authorized  the  President,  ' '  in  any  such  event,  by  his  procla- 
mation thereof,  or  other  public  act,"  to  establish  the  necessary 
regulations  for  the  conduct,  restraint,  residence,  or  removal  of 
such  aliens.98  President  Wilson,  in  his  proclamation  of  April  6, 
1917,  anouncing  the  state  of  war  with  Germany,99  referred 
specifically  to  this  section  of  the  Revised  Statutes  for  his  author- 
ity, tho  he  was  probably  referring  rather  to  the  authorization 
to  proclaim  alien  enemy  regulations  than  to  the  mere  announce- 
ment of  a  state  of  war.  President  McKinley  issued  several  proc- 

96  Eichardson,  op.  tit.,  I,  512;  IV,  470. 
»7  Constitution,  Art.  II,  Sec.  3. 

98  Act  of  July  6,  1798.     Annals  of  Cong.,  5  Cong.,  Ill,  App.,  3753.     See 
also  U.  S.  Bev.  Stats.,  sec.  4067. 

99  Text  in  McKinley,  Collected  Materials  for  the  Study  of  the  War,  169. 


98  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [98 

lamations  after  the  declaration  of  war  against  Spain,  but  none 
announcing  the  existence  of  a  state  of  war.  It  was  probably 
thought  unnecessary  since  the  war  had  already  been  going  on 
for  several  days  before  the  retroactive  declaration  was  adopt- 
ed.100 The  President  can  hardly  be  said  to  be  under  any  obliga- 
tion to  issue  such  a  proclamation,  since  the  passage  of  the  dec- 
laration should  be  sufficient  notice  to  the  country  of  the  existence 
of  a  state  of  war.  He  has  generally  deemed  it  wise  to  do  so,  how- 
ever, and  there  can  be  no  question  of  his  power  in  that  respect, 
even  without  express  authority.  The  statute  mentioned  may  be 
said  to  confer  the  authority  by  implication,  and,  indeed  seems 
to  expect  from  the  President  that  action. 


100  The  joint  resolution  authorizing  the  President  to  use  the  armed  forces 
in  compelling  Spain's  withdrawal  from  Cuba  was  passed  April  20,  hostile 
measures  were  taken  at  once,  and  the  formal  declaration,  passed  April  25, 
declared  the  war  to  have  existed  since  the  21st. 


II.  Military  Powers  in  Time  of  War 


CHAPTER  VI 

POWER  TO  RAISE  AND  ORGANIZE  THE 
ARMED  FORCES 

It  has  come  to  be  an  axiom  in  public  law  that  the  power  to 
raise  and  support  the  armed  forces  of  a  democratic  state  should 
be  confided  exclusively  to  the  popular  branch  of  the  govern- 
ment.1 The  Constitution  of  the  United  States  accordingly  gives 
to  Congress  the  power  "to  raise  and  support  armies,"  and  "to 
provide  and  maintain  a  navy. ' ' 2  Raising  armies  includes  such 
matters  as  the  determination  of  the  number  of  men  to  be  enlist- 
ed ;  their  enlistment  qualifications ;  their  oganization  into  the  dif- 
ferent arms  of  the  service ;  the  number  and  arrangement  of  the 
various  units ;  the  number  and  rank  of  officers ;  the  term  of  ser- 
vice for  officers  and  men.  Providing  a  navy  includes  the  deter- 
mination of  the  same  class  of  subjects  relating  to  the  seamen  and 
naval  officers ;  the  number,  size,  character,  and  cost  of  vessels  of 
war,  navy  and  dock  yards,  and  other  similar  matters.3 

Over  all  these  matters  the  power  of  Congress  is  complete  and 
exclusive.  The  President  is  vested  with  no  constitutional  power 
in  regard  to  the  raising  and  organization  of  the  armed  forces.  He 
derives  none  from  his  position  before  international  law.  Hence 
such  powers  as  he  does  possess  in  this  respect  must  rest  wholly 
upon  the  authority  of  custom  and  statute.  Congress  in  this  field  is 
supreme,  but  Congress  has  from  the  first  recognized  the  wisdom 
and  necessity  of  entrusting  the  President  with  some  statutory 
authority,  which  has  at  times  amounted  to  the  exercise  of  a  con- 
siderable discretionary  power. 

The  common  method  of  raising  armies  under  ordinary  circum- 
stances —  that  of  voluntary  enlistment  —  has  generally  been  ex- 

1  Pomeroy,  Constitutional  Law  (Bennett's  ed.),  382. 

2  Art.  I,  See.  8,  Cl.  12,  13. 

3  Pomeroy,  op.  cit.,  383. 

101 


102  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [102 

ercised  in  peace  time  in  accordance  with  detailed  statutes,  leaving 
to  the  President  little  or  no  real  power.  Congress  is  ordinarily 
careful  to  prescribe  definitely  the  number  of  men  to  be  enlisted, 
their  enlistment  qualifications,  the  term  of  their  service,  and 
other  details,  merely  authorizing  the  President  ' ' to  accept, "  "to 
call  for,"  "to  call  for  and  accept,"  or  "to  employ,"  within  these 
well-defined  limits.  Occasionally  the  statutes  have  prescribed 
only  the  maximum  number  of  men  to  be  raised,  giving  to  the 
President  some  little  discretion  in  determining  upon  the  size  of 
the  forces  within  that  number.  Likewise  when  providing  for  the 
navy,  the  statutes  generally  prescribe  in  detail  the  number  and 
kind  of  ships  to  b#  constructed,  contracted  for,  or  purchased,  the 
cost  and  details  of  equipment  and  armament,  and  other  corres- 
ponding matters,  leaving  to  the  President  only  the  duty  to  see 
that  the  provisions  of  the  statutes  are  carried  out. 

In  times  of  war  or  emergency,  however,  and  occasionally  even 
in  peace  time,  the  President  has  been  vested  with  more  or  less 
discretion  in  these  matters.  Thus  the  foundation  of  the  army 
under  the  Constitution  had  scarcely  been  laid,4  when  by  the  Act 
of  March  3,  1791,  which  added  another  regiment  to  the  regular 
forces,  the  President  was  given  power,  "if  of  opinion  that  it  will 
be  conducive  to  the  public  service,"  to  employ  "levies"  (volun- 
teers) in  addition  to  the  number  of  2000,  for  six  months,  as  a 
supplementary  force,  obviously  to  be  used  only  for  emergency 
purposes.5  An  act  of  the  next  year  (March  5,  1792),  passed  as  a 
result  of  St.  Clair's  defeat  by  the  Indians,  provided  three  addi- 
tional regiments  for  the  protection  of  the  frontier  to  be  enlisted 
for  three  years,  but  gave  the  President  the  power  "to  forbear  to 
raise,  or  to  discharge  after  they  shall  be  be  raised, ' '  the  whole  or 
any  part  of  these  forces,  "in  case  events  shall,  in  his  judgment 
render  his  so  doing  consistent  with  the  public  safety. ' '  The  Presi- 
dent was  further  authorized  to  call  into  service  ' '  for  such  period 
as  he  may  deem  requisite,  such  number  of  cavalry  as,  in  his  judg- 
ment, may  be  necessary  for  the  protection  of  the  frontiers ; ' '  and 

*  By  the  Act  of  Sept.  29,  1789,  the  army  existing  under  the  Confedera- 
tion was  "recognized  to  be  the  establishment  for  the  troops  in  the  service 
of  the  United  States; "  and  by  the  Act  of  Apr.  30,  1790,  the  beginning  was 
made  of  a  permanent  military  establishment.  Annals  of  Cong.,  1  Cong.,  II, 
App.,  2199,  2222. 

5  Ibid.,  2350. 


103]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  103 

also  to  employ  ''such  number  of  Indians  as  he  may  think  prop- 
er ..  in  case  he  shall  deem  the  measure  expedient. ' ' 6 

The  crisis  with  France  resulted  also  in  the  granting  of  consid- 
erable discretionary  power  to  the  President.  The  Act  of  May  28, 
1798,  authorized  the  President  to  raise  a  Provisional  Army  of 
10,000  men, ' '  in  the  event  of  a  declaration  of  war  against  the  Uni- 
ted States,  or  of  actual  invasion  of  their  territory  by  a  foreign 
Power,  or  of  our  imminent  danger  of  such  invasion,  discovered, 
in  his  opinion,  to  exist,  before  the  next  session  of  Congress ; ' '  and 
also  to  create  a  sort  of  reserve  force  by  accepting,  "  if  in  his  opin- 
ion the  public  service  shall  require, ' '  volunteers  liable  to  service 
at  any  time  within  two  years.7  Other  acts  during  the  same  period 
likewise  vested  the  President  with  some  discretionary  power, 
such  as  to  prescribe  the  enlistment  qualifications  for  the  forces 
provided  and  to  discharge  the  troops  at  his  discretion.8 

The  Acts  of  February  24, 1807  and  February  6, 1812,  passed  in 
anticipation  of  trouble  with  England,  each  again  provided  a  sort 
of  reserve  force,  of  30,000  and  50,000  men,  respectively,  to  be 
liable  for  duty  at  any  time  the  President  might  deem  proper, 
within  two  years  from  the  date  of  their  acceptance  into  the  ser- 
vice ;9  while  another  act  passed  during  the  war  (Act  of  January 
29,  1813)  authorized  the  raising  of  such  a  force  "as  in  the  opin- 
ion of  the  President  may  be  necessary  for  the  public  service, ' '  up 
to  twenty  additional  regiments.10 

During  the  Mexican  "War  very  little  real  discretionary  author- 
ity was  granted  to  the  President  in  the  matter  of  raising  the 
necessary  forces,  altho  the  Act  of  May  13,  1846,  recognizing 
a  state  of  war,  empowered  him  to  employ  the  militia,  naval,  and 
military  forces,  and  "to  call  for  and  accept"  up  to  50,000  volun- 
teers; while  another  act  of  the  same  date  authorized  him  to  in- 
crease the  companies  in  the  regular  army  to  100,  to  be  reduced 
again  to  64  when  the  exigency  should  cease.11 

e  Annals  of  Cong.,  2  Cong.,  App.,  1343  (Sees.  11,  13,  14). 

1 1bid.,  5  Cong.,  Ill,  App.,  3729  (Sees.  1,  3).  It  was  under  authority 
of  this  act  that  Washington  was  appointed  Lieutenant-General  and  Com- 
mander-in-Chief  of  the  forces  to  be  raised  for  the  expected  war  with  France. 

3  Acts  of  July  16,  1798  and  Mar.  2,  1799.    Ibid.,  3785,  3933. 

9/fcwZ.,  9  Cong.,  2  Sess.,  App.,  1259;  ibid.,  12  Cong.,  II,  App.,  2235. 

lo/fctd.,  12  Cong.,  2  Sess.,  App.,  1322-1325. 

11  9  Stat.  at  L.,  9,  11. 


104  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [104 

The  earliest  acts  for  the  raising  of  volunteers  and  for  the  in- 
crease of  the  regular  army  during  the  Civil  War  were  similar  in 
character,  the  President  being  authorized  to  accept  volunteers, 
"in  such  numbers  as  the  exigencies  of  the  public  service  may,  in 
his  opinion,  demand, "  up  to  500,000  for  three  years  or  the  dura- 
ton  of  the  war;  and  to  increase  the  regular  army  by  11  regi- 
ments, such  increase  to  be  only  for  the  period  of  the  emer- 
gency.12 The  Act  of  July  17,  1862,  however,  vested  the  Presi- 
dent with  somewhat  larger  powers,  in  that,  besides  authorizing 
him  to  accept  an  additional  100,000  volunteers  for  nine  months, 
it  empowered  him  to  accept  volunteers  as  replacements,  ' '  in  such 
numbers  as  may  be  presented  for  that  purpose;"  and  also  to 
employ  persons  of  African  descent,  without  limit  as  to  number, 
for  any  labor,  or  military  or  naval  service,  for  which  they  might 
be  found  competent.13  Considerable  power  was  also  given  with 
regard  to  increasing  the  navy  by  an  act  which  authorized  the 
Secretary  of  the  Navy  to  hire,  purchase,  or  contract  for  such  ves- 
sels ' '  as  may  be  necessary. '  '14 

The  most  sweeping  grant  of  power  with  regard  to  the  raising 
of  forces  by  voluntary  enlistment  came  during  the  Spanish- 
American  War,  when  no  limit  was  placed  on  the  numbers  the 
President  might  call  for  in  that  way.  Both  the  Joint  Resolu- 
tion of  April  20,  presenting  the  ultimatum  to  Spain,  and  the  Act 
of  April  25,  formally  declaring  war,  empowered  the  President, 
in  identical  language,  "to  use  the  entire  land  and  naval  forces 
of  the  United  States,  and  to  call  into  the  actual  service  of  the 
United  States  the  militia  of  the  several  States,  to  such  exent  as 
may  be  necessary  to  carry  these  resolutions  [and  this  Act]  into 
effect."15  The  Act  of  April  22,  1898,  authorizing  the  Volun- 
teer Army,  apparently  contemplated  some  legal  limit,  as  it  pro- 
vided that  when  necessary  to  raise  a  volunteer  army,  ' '  the  Presi- 
dent shall  issue  his  proclamation  stating  the  number  of  men  de- 
sired, within  such  limits  as  may  be  fixed  by  law. ' ' 16  With  the 
exception  of  provisions  regarding  special  organizations,17  no  lim- 

12  Acts  of  July  22,  July  25,  and  July  29,  1861.  12  Stat.  at  L.,  268,  274, 
279. 

1312  Stat.  at  L.,  597  (Sees.  3,  4,  12). 

i*  Act  of  July  24,  1861.  Ibid.,  272. 

is  30  Stat.  at  L.,  364,  738. 

lej&td.,  361  (Sec.  5). 

n  Ibid.  (Sec.  6);  see  also  Act  of  May  11,  1898.     Ibid.,  405. 


105]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  105 

it  to  the  number  of  troops  to  be  raised  was  ever  made.  Under  the 
provisions  of  this  act,  President  McKinley  issued  two  proclama- 
tions, one  on  April  23,  calling  for  125,000  volunteers,  and  the 
other  on  May  25,  calling  for  75,000.18 

During  the  recent  war  with  Germany,  the  principle  of  raising 
troops  by  voluntary  enlistment  was  almost  entirely  abandoned, 
altho  the  President  was  at  the  beginning  of  the  war  empowered 
in  that  way  to  raise  the  increments  of  the  Regular  Army  provid- 
ed for  by  the  National  Defense  Act  of  1916,  to  recruit  all  Regu- 
lar Army  organizations  to  their  maximum  strength,  and  to  raise 
and  maintain  at  his  discretion  four  infantry  divisions.19 

Tho  considerable  power  has  thus  on  many  occasions  been  grant- 
ed to  the  President  to  raise  forces  by  the  process  of  voluntary 
enlistment,  the  adoption  of  conscription  has  carried  with  it  a  still 
larger  grant  of  power  and  a  wider  range  of  discretion.  There  is 
no  longer  any  doubt  as  to  the  constitutional  right  of  Congress  to 
provide  for  the  raising  of  armed  forces  by  conscription  as  well 
as  by  voluntary  enlistment,20  and  this  method  has  been  used, 
less  commonly  than  the  other,  but  on  occasions  of  greater  emer- 
gency. 

Conscription  was  recommended  by  Congress,  and  used  to  some 
extent  by  the  states  during  the  Revolution,21  and  was  first  pro- 
posed under  the  Constitution  in  1814.  Other  methods  having 
failed  to  bring  forth  the  required  number  of  troops,  Secretary  of 

18  Eichardson,  Messages  and  Papers  of  the  Presidents,  X,  203-204,  205- 
206. 

is  Selective  Service  Act  of  May  18,  1917.  The  authorization  of  the  vol- 
unteer infantry  divisions  was  in  response  to  the  offer  of  ex -President  Roose- 
velt to  raise  this  number  of  troops  from  the  country  at  large.  President 
Wilson  declined  to  exercise  the  authority  granted  him  under  this  provision. 

20  Arver  v.  United  States,  245  U.  S.,  366(1918),  in  Wigmore,  Source- 
Book  of  Military  Law  and  War-Time  Legislation,  617-626.     The  general 
understanding  that  the  Constitution  contemplated  and  permitted  conscrip- 
tion was  indicated  by  the  following  amendment  proposed  by  the  Rhode 
Island  ratifying  convention,  May  29,  1790:  "That  no  person  shall  be  com- 
pelled to  do  military  duty  otherwise  than  by  voluntary  enlistment,  except  in 
cases  of  general  invasion;   anything  in  the  second  paragraph  of  the  sixth 
article  of  the  Constitution,  or  any  law  made  under  the  Constitution,  to  the 
contrary  notwithstanding."  Elliot's  Debates,  I,  336.     The  arguments  for 
and  against  conscription  are  well  summed  up  in  Pomeroy,  Constitutional 
Law,  391-392. 

21  Upton,  Military  Policy  of  the  United  States,  27-28,  29,  35-36,  42. 


106  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [106 

War  Monroe,  in  a  report  submitted  October  17,  suggested  to  Con- 
gress several  alternative  plans  of  raising  men  by  draft.22  Some 
sort  of  conscription  measure  would  undoubtedly  have  been  adopt- 
ed, had  not  its  necessity  been  obviated  by  the  termination  of  the 
war. 

The  Enrollment  Act  of  March  3,  1863,  is  notable  as  being  the 
first  instance  of  resort  to  conscription  in  the  United  States  under 
the  Constitution.  This  act  constituted  all  able-bodied  male  citi- 
zens and  declarants  between  the  ages  of  20  and  45  into  the  ''na- 
tional forces,"  made  certain  classifications,  divided  the  country 
into  enrollment  districts,  and  empowered  the  President  to  assign 
to  each  district  the  quota  of  men  to  be  furnished  and  to  call  forth 
these  " national  forces"  by  draft.23  Amendments  added  in  1864 
made  it  clear  that  the  President's  power  to  call  for  men  by  this 
means  was  to  be  practically  unlimited,  he  being  authorized, 
' '  whenever  he  shall  deem  it  necessary,  during  the  present  war,  to 
call  for  such  number  of  men  for  the  military  service  of  the  Uni- 
ted States  as  the  public  exigencies  may  require ; ' '  and  further, 
at  his  discretion,  to  call  for  volunteers  for  one,  two,  or  three 
years,  deficiencies  in  quotas  to  be  filled  by  draft.24 

Under  the  provisions  of  these  acts,  President  Lincoln  issued 
five  separate  calls  for  men  —  by  proclamation  of  October  17, 
1863,  a  call  for  300,000  volunteers  for  three  years  or  the  war,  to 
serve  as  replacements  for  those  whose  term  of  service  expired 
during  the  year,  and  any  deficiencies  in  the  quotas  of  any  state 
to  be  made  up  by  draft  on  January  5,  1864;  by  executive  order 
of  February  1,  1864,  a  draft  for  500,000  for  three  years  or  the 
war,  with  deductions  for  men  furnished  under  the  call  of  Octo- 
ber 17,  and  therefore  in  reality  a  call  for  only  200,000 ;  by  execu- 
tive order  of  March  14,  1864,  an  additional  draft  for  200,0000  to 
supply  a  force  for  the  Navy  and  an  adequate  reserve ;  by  procla- 
mation of  July  18,  1864,  a  call  for  500,000  volunteers,  deficien- 
cies to  be  filled  by  draft  on  September  5 ;  and  by  proclamation  of 
December  19,  1864,  a  call  for  300,000  volunteers  for  one,  two,  or 
three  years,  to  supply  deficiencies  and  to  provide  for  casualties.25 

22  Am.  State  Papers,  Mil.  Affairs,  I,  514-517. 

23  12  Stat.  at  L.,  731. 

24  Acts  of  Feb.  24  and  July  24,  1864.    13  ibid.,  6,  390. 

25  Richardson,  Messages  and  Papers  of  the  Presidents,  VI,  169,  226-227, 
232,  235,  271-272. 


107]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  107 

The  Spanish  War  was  fought  principally  with  volunteers,  but 
it  has  already  been  noted  that  the  President  was  given  practic- 
ally unlimited  power  with  respect  to  the  raising  of  those.26  The 
threatening  situation  that  had  been  developed  by  the  great  Eu- 
ropean War  led,  however,  to  the  passage  in  1916  of  the  so-called 
National  Defense  Act,27  into  which  was  incorporated  to  a  certain 
extent  the  principle  of  conscription,  in  that  the  President  was 
empowered,  among  other  things,  to  draft  the  National  Guard 
and  the  National  Guard  Reserve  created  by  that  act,  into  the 
federal  service,  whenever  Congress  should  authorize  the  use  of 
armed  forces  for  any  purpose  requiring  troops  in  excess  of  the 
Regular  Army. 

This  act  increased  considerably  the  President's  powers  to  use 
the  militia  forces  at  his  discretion,  since  the  troops  so  "federal- 
ized ' '  were  by  that  action  automatically  discharged  from  the  mi- 
litia and  taken  over  bodily  into  the  national  forces,  and  might 
therefore  be  used,  not  merely  as  militia,  but  for  any  purpose  for 
which  the  regular  military  and  naval  forces  might  be  used.28 
Under  the  provisions  of  this  act,  the  National  Guard  was  "fed- 
eralized"  and  drafted  by  the  President  into  the  service  of  the 
United  States  during  the  Mexican  border  troubles  of  1916,  and 
at  the  beginning  of  the  war  with  Germany  in  1917.29 

Finally,  the  principle  of  conscription  was  adopted  in  the  Se- 
lective Service  Act  of  May  18,  1917,30  as  the  one  means  for  rais- 
ing the  immense  number  of  men  required  in  the  war  with  Ger- 
many, and  the  President  was  vested  with  wide  powers  in  con- 
nection therewith.  He  was  authorized  to  draft  into  the  service 
of  the  United  States  the  various  National  Guard  organizations, 
in  accordance  with  the  National  Defense  Act  of  1916;  to  raise 

26  Supra,  104. 

27  Public  No.  85,  64  Cong.,  in  Wigmore,  Source-Book  of  Military  Law 
and  War-Time  Legislation,  384-444. 

28  It  was  under  the  provision  of  this  act  that  the  President  was  enabled 
to  send  the  National  Guard  organizations  overseas  during  the  recent  war, 
practically  intact,  and  thus  add  in  short  order  an  immense  number  of  al- 
ready organized  and  at  least  partly  trained  men  to  the  fighting  forces. 

29  N.  Y.  Times  Current  Hist.  Mag.,  IV,  617;  see  proclamation  of  July 
3,  1917.     U.  S.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  37. 

so  Public  No.  12,  65  Cong.,  in  Wigmore,  op.  cit.,  460-468.  This  act  was 
amended  at  various  times  —  Apr.  20,  May  16,  May  20,  Aug.  31,  1918.  Ibid., 
469-474. 


108  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [108 

immediately  by  draft  500,000  men  in  addition  to  the  Regular 
Army  and  the  National  Guard;  to  raise  and  begin  training,  "in 
his  discretion  and  at  such  time  as  he  may  determine,"  an  addi- 
tional 500,000;  and  to  raise  by  draft  such  additional  units  "as 
he  may  deem  necessary ' '  for  the  maintenance  of  the  above  forces 
at  the  maximum  strength. 

Tho  an  army  of  nearly  2,000,000  men  was  thus  provided  for, 
President  Wilson  was  not  satisfied  with  the  powers  granted,  and 
on  May  2,  1918,  through  Secretary  Baker,  he  requested  Congress 
to  remove  all  limit  on  the  number  of  men  that  might  be  drafted 
for  military  service  and  to  give  him  authority  to  summon  as 
many  as  he  might  find  necessary.81  Congress  acceded  to  this  re- 
quest, and  in  the  Army  Appropriations  Act  of  July  9,  1918,32 
extended  the  authority  of  the  President  "so  as  to  authorize  him 
during  each  fiscal  year  to  raise  by  draft  .  .  .  the  maximum 
number  of  men  which  may  be  organized,  equipped,  trained,  and 
used  during  each  year  for  the  prosecution  of  the  present  war 
until  the  same  shall  have  been  brought  to  a  successful  con- 
clusion. ' ' 

The  President  has  thus  from  the  very  earliest  period  of  our  na- 
tional history  exercised  a  considerable  power  in  connection  with 
the  raising  of  armed  forces,  a  power  that  has  been  increased 
with  the  needs  of  the  emergency,  but  a  power  based  generally 
on  definite  statutory  authority.  It  is  beyond  dispute  that  with- 
out such  authority  the  President  has  no  right  to  raise  armies  or 
provide  for  the  navy.  Nevertheless,  there  have  been  occasions 
when  such  power  has  been  exercised  without  any  legal  sanction. 
Thus,  during  the  Seminole  War  of  1818,  the  military  command- 
ers (Generals  Gaines  and  Jackson)  took  the  responsibility  of  rais- 
ing and  organizing  a  force  of  volunteers  and  Indians  without 
statutory  authority,  and  of  formally  mustering  them  into  the 
service  of  the  United  States.  General  Jackson,  on  taking  com- 
mand, had  been  ordered  by  the  War  Department  to  call  on  the 
executives  of  adjoining  states  for  such  additional  militia  as 
might  be  required  for  the  termination  of  the  war,  but  instead  he 
levied  an  army  from  the  people  of  Tennessee  and  Kentucky  by 
private  circular  letters,  accepted  the  services  of  two  regiments  of 
volunteers  as  well  as  a  considerable  body  of  friendly  Indians, 

31  N.  Y.  Times,  May  3,  1918. 

32  Public  No.  193,  65  Cong.,  in  Wigmore,  op.  cit.,  587,  600. 


109]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  109 

organized  and  officered  them  on  his  own  authority,  and  placed 
at  their  disposition  United  States  funds  under  his  control.  Al- 
together he  was  reported  to  have  raised  an  army  of  about  2500 
men,  appointed  230  officers,  and  established  rank  from  an  Indian 
brigadier-general  down  to  the  lowest  subaltern  of  a  company.33 

Jackson's  action  was  vigorously  condemned  in  reports  by  both 
Senate  and  House  committees,  as  a  violation  of  the  Constitution 
and  a  dangerous  infringement  on  the  powers  of  Congress.34 
Jackson  defended  his  action  with  equal  vigor,  claiming  that  he 
had  been  in  effect  charged  with  the  management  of  the  war  and 
vested  with  the  powers  necessary  to  carry  it  to  a  "speedy  and 
successful"  termination;  that  the  call  for  volunteers  was  abso- 
lutely necessary  to  avoid  delay  and  disaster;  and  that  "every 
measure  touching  the  raising  and  organizing  this  volunteer 
corps  was  regularly  communicated  to  the  Secretary  of  War,  and 
received  his  unqualified  approbation. ' ' 35  The  records  appear 
to  sustain  Jackson's  contention.  Secretary  of  War  Calhoun,  in 
reply  to  Jackson's  announcement  of  what  he  had  done,  ex- 
pressed to  him  the  "entire  approbation  of  the  President  of  all 
the  measures  which  you  have  adopted  to  terminate  the  rupture 
with  the  Indians. ' ' 38  Responsibility  for  the  violation  of  the 
Constitution  must  therefore  rest  finally  in  this  instance  with  the 
Executive. 

In  1845  occurred  another  instance  of  this  exercise  of  power 
without  statutory  authority.  Anticipating  war  with  Mexico, 
the  Adjutant  General,  by  direction  of  the  Secretary  of  War, 
wrote  General  Taylor  on  August  6,  directing  him  to  learn  from 
the  authorities  of  Texas  what  additional  forces  could,  in  a  case 
of  need,  be  placed  at  his  disposal,  and  giving  him  authority  to 
call  them  into  service.  "Such  auxiliary  volunteer  force  from 
Texas,  when  events,  not  now  revealed,  may  justify  their  em- 
ployment, will  be  organized  and  mustered  under  your  orders, 
and  be  received  into  the  service  of  the  United  States  when  ac- 
tually required  in  the  field  to  repel  invasion,  actual  or  menaced, 

33  Am.  State  Papers,  Mil.  Affairs,  I,  740 ;  II,  99-100. 

s*  See  report  of  the  Senate  committee,  Feb.  24,  1819 ;  of  the  House  com- 
mittee, Feb.  28,  1820.  Ibid.,  I,  739-741 ;  II,  101. 

35  nid.,  I,  755,  758. 

so  See  letters  of  Jackson  to  Calhoun,  Jan.  12  &  Jan.  20,  1818;  and  of 
Calhoun  to  Jackson,  Jan.  29  &  Feb.  6,  1818.  Ibid.,  I,  696-697,  743-744. 


110  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [110 

and  not  before. ' ' 37  This  order  to  Taylor  was  entirely  without 
authority  of  statute,  tho  it  was  expected  that  provision  would  be 
made  to  cover  the  case. 

President  Lincoln,  immediately  after  the  outbreak  of  the 
Civil  War,  took  it  upon  himself  to  raise  a  great  army  without 
awaiting  the  sanction  of  Congress.  By  proclamation  of  May  3, 
1861,  based  on  no  authority  except  the  "existing  exigencies"  and 
his  own  position  "as  President  and  Commander-in-Chief , "  he 
ordered  the  increase  of  the  Regular  Army  by  22,714  officers  and 
men  and  of  the  Navy  by  18,000  seamen,  and  in  addition  called 
for  42,034  volunteers  to  serve  for  three  years  —  an  aggregate  in- 
crease in  the  armed  forces  of  82,748  officers  and  men.38  By  the 
time  of  the  special  session  of  Congress,  beginning  July  4,  the 
response  to  these  calls  had  brought  forth  a  total  of  220,000  men 
accepted  for  service  —  besides  80,000  militia  for  three  months  — 
without  any  constitutional  or  statutory  authority.39  The  Presi- 
dent further,  without  statutory  authority,  ordered  a  total  of 
19  vessels  added  to  the  Navy,  and  directed  the  Secretary  of  the 
Treasury  to  advance,  without  security,  $2,000,000  to  private  in- 
dividuals, to  be  used  in  meeting  requisitions  made  necessary  by 
these  military  and  naval  measures.40 

Rhodes  characterized  these  acts  of  the  President  as  "clearly 
beyond  the  President 's  authority, ' ' 41  and  Upton  says  of  them 
that  "No  usurpation  could  have  been  more  complete."42  The 
President  himself  recognized  and  admitted  that  he  had  acted 
beyond  his  constitutional  or  statutory  powers,  but  justified  him- 
self on  the  grounds  of  necessity,  saying  to  Congress  in  his  mes- 
sage of  July  4,  1861:  "These  measures,  whether  strictly  legal  or 
not,  were  ventured  upon  under  what  appeared  to  be  a  popular 
demand  and  a  public  necessity,  trusting  then,  as  now,  that  Con- 
gress would  readily  ratify  them.  It  is  believed  that  nothing  has 

37  House  Ex.  Doc.  No.  60,  30  Cong.,  1  Sess.,  83,  84,  quoted  in  Upton, 
Military  Policy  of  the  United  States,  195-196. 

ss  Richardson,  op.  tit.,  VI,  15-16.  See  also  Lincoln 's  executive  order  of 
May  7,  1861.  Ibid.,  18-19. 

39  Upton,  Military  Policy  of  the  United  States,  230. 

40  Richardson,  op.  cit.,  VI,  78.    The  individuals  were  John  A.  Dix,  George 
Opdyke,  and  Richard  H.  Blatchford. 

*i  History  of  the  United  States,  III,  395. 
42  Military  Policy  of  the  United  States,  229. 


Ill]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  111 

been  done  beyond  the  constitutional  competency  of  Congress. ' ' 43 
To  this  Congress  responded  by  the  Act  of  August  6,  1861,  legal- 
izing all  the  acts,  proclamations,  and  orders  of  the  President  af- 
ter March  4,  1861,  respecting  the  Army  and  Navy  and  calling 
out  militia  and  volunteers,  "as  if  they  had  been  issued  and  done 
under  the  previous  and  express  authority  and  direction  of  the 
Congress  of  the  United  States. '  '** 

It  is  not  within  the  scope  of  this  study  to  speculate  upon  the 
question  whether,  in  these  instances  of  unauthorized  exercise  of 
power,  the  President  was  justified  by  the  necessities  in  each  case. 
It  is  sufficient  to  note  that,  when  he  considered  the  emergency  ser- 
ious enough,  the  President  has  acted,  and  presumably  will  again 
act,  as  he  thinks  the  situation  demands,  and  trust  to  Congress 
to  grant  him  the  proper  legal  sanction  afterwards.  If  these 
steps  appear  necessary  to  save  the  government,  as  they  were  said 
by  Lincoln  to  be  necessary  in  1861,  popular  opinion  will  undoubt- 
edly sustain  the  President,  as  it  did  then. 

In  the  matter  of  the  organization  of  the  armed  forces,  the 
statutes  have  generally  been  careful  to  provide  the  details,  but 
the  President  has  frequently  been  granted  considerable  power 
in  this  respect  also,  especially  in  time  of  war  or  public  emergency. 
The  Act  of  March  3,  1791,  authorizing  the  President  to  employ 
emergency  "levies"  at  his  discretion,  empowered  him  also  "to 
organize  the  said  levies, ' '  apparently  as  he  should  see  fit  ;45  while 
the  Act  of  March  5,  1792,  prescribed  in  detail  the  organization 
of  the  enlarged  army,  but  with  the  distinct  proviso,  "That  it 
shall  be  lawful  for  the  President  of  the  United  States  to  organ- 
ize the  five  regiments  of  infantry  and  the  said  corps  of  horse  and 
artillery  as  he  shall  judge  expedient,  diminishing  the  number  of 
corps,  or  taking  from  one  corps  and  adding  to  another,  as  shall 
appear  to  him  proper. ' ' 4e 

Under  the  authority  of  this  act,  President  Washington,  on  De- 
cember 27,  1792,  announced  to  Congress  that  the  Legionary  plan 
of  organization  had  been  adopted  for  the  troops,  the  whole  force 
of  about  5,000  men  being  given  the  name  of  the  Legion  of  the 

*a  Bichardson,  op.  tit.,  VI,  24.     See  also  Lincoln's  statement  in  his  mes- 
sage of  May  26,  1862.  Ibid.,  78. 
«  12  Stat.  at  L.,  326  (See.  3). 

45  Annals  of  Cong.,  1  Cong.,  II,  App.,  2350  (Sec.  9). 
46/fctd.,  2  Cong.,  App.,  1343  (Sec.  2). 


112  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [112 

United  States,  and  divided  into  four  Sub-Legions,  each  with  its 
staff  and  more  detailed  division  into  dragoons,  artillery,  infantry, 
and  riflemen.47  The  plan  so  adopted  continued  under  executive 
authority  until  1795,  when  it  was  given  definite  statutory  recog- 
nition, the  Sub-Legions  still  to  be  organized,  however,  "in  such 
manner  as  the  President  of  the  United  States  shall  direct. ' ' 48 

The  Provisional  Army  provided  for  the  expected  war  with 
France  was  to  be  organized  by  the  President  into  corps  of  artil- 
lery, cavalry,  and  infantry,  ' '  as  the  exigencies  of  the  service  may 
require ; " 49  the  largest  portion  of  the  troops  provided  in  view 
of  the  threatening  relations  with  England  was  to  be  organized  by 
him  into  battalions,  squadrons,  regiments,  brigades,  and  divisions 
as  expedient;50  while  the  forces  raised  particularly  for  the  pro- 
tection of  the  frontier  were  to  be  armed,  equipped,  and  organ- 
ized "in  such  manner  ...  as  the  nature  of  the  service,  in 
his  opinion,  may  make  necessary. ' ' 51 

The  organization  of  the  forces  raised  for  the  prosecution  of  the 
Mexican  "War  was  prescribed  in  considerable  detail  in  the  stat- 
utes, leaving  to  the  President  very  little  discretionary  authority. 
The  same  was  true  of  those  authorized  during  the  Civil  War, 
except  that  the  Act  of  July  17,  1862,  empowered  the  President 
to  establish  and  organize  army  corps  according  to  his  discre- 
tion.52 The  organization  of  the  forces  raised  by  the  proclama- 
tion of  May  3,  1861,  was,  however,  undertaken  by  the  President 
without  definite  authority,  as  was  the  actual  levying,  and  it  was 
done  in  a  most  extraordinary  manner,  in  that  it  was  entrusted  by 
the  President  to  the  Secretary  of  the  Treasury  instead  of  to  the 
Secretary  of  War.53  Secretary  Chase  was  to  be  assisted  by  a 

*7  Am.  State  Papers,  Mil.  Affairs,  I,  40-41. 

48  Act  of  Mar.  3,  1795.     Annals  of  Cong.,  3  Cong.,  App.,  1515  (Sec.  3). 

4» Act  of  May  28,  1798.     Ibid.,  5  Cong.,  Ill,  App.,  3729  (Sec.  2). 

eo  Acts  of  Feb.  24,  1807  and  Feb.  6,  1812.  Ibid.,  9  Cong.,  2  Sess.,  App., 
1259  (Sec.  3);  12  Cong.,  II,  App.,  2235  (Sec.  3). 

si  Act  of  Jan.  2,  1812.    Ibid.,  12  Cong.,  II,  App.,  228  (Sec.  1). 

5212  Stat.  at  L.,  597  (See.  9).  For  an  example  of  how  President  Lin- 
coln organized  the  army  of  the  Potomac  under  this  provision  see  his  Gen- 
eral War  Order  No.  2,  Mar.  8,  1862.  WorTcs  of  Abraham  Lincoln  (Federal 
ed.),  V,  443-444. 

«« ' '  The  Secretary  of  War  is  the  regular  constitutional  organ  of  the 
President  for  the  administration  of  the  military  establishment  of  the  na- 
tion." United  States  v.  Eliason,  16  Pet,  291,  302  (1842). 


113]          POWER  TO  RAISE  AND  ORGANIZE  THE  ARMED  FORCES  113 

board  of  three  army  officers  (Colonel  Thomas,  the  Adjutant  Gen- 
eral, Major  McDowell,  the  Assistant  Adjutant  General,  and  Cap- 
tain Franklin,  of  the  Topographical  Engineers),  who  were  free 
to  make  propositions,  altho  their  acceptance  or  rejection  rest- 
ed wholly  with  the  Secretary  of  the  Treasury.  The  scheme  of 
organization  agreed  upon  by  this  board  and  accepted  by  Secre- 
tary Chase  was  adopted  by  the  War  Department  and  published 
to  the  army  in  General  Orders,54  later  being  incorporated  by 
Congress  into  statute.55 

For  the  Spanish  War,  the  Act  of  April  22,  1898,  altho  pre- 
scribing rather  fully  the  organization  of  the  volunteers  into  brig- 
ades and  divisions,  again  authorized  the  President  to  organize 
the  army  corps.56  In  the  National  Defense  Act  of  1916,  the  or- 
ganization was  likewise  carefully  prescribed  up  to  and  including 
brigades  and  divisions,  but  the  President  was  empowered,  "in 
time  of  actual  or  threatened  hostilities,  or  when  in  his  opinion 
the  interests  of  the  public  service  demand  it,"  to  organize  the 
forces  into  "such  army  corps  or  armies  as  may  be  necessary," 
with  the  further  provision  that  "nothing  herein  contained  .  . 
shall  prevent  the  President  from  increasing  or  decreasing  the 
number  of  organizations  prescribed  for  the  typical  brigades,  di- 
visions, and  army  corps,  or  from  prescribing  new  and  different 
organizations  and  personnel  as  the  efficiency  of  the  service  may 
require. ' ' " 

This  blanket  authority  was  continued  in  almost  identical  lan- 
guage in  the  Selective  Service  Act  of  1917,58  and  made  it  possible 
for  the  President,  upon  the  advice  of  the  General  Staff,  so  to 
adjust  the  organization  of  the  army  and  to  add  such  new  units 
as  the  character  of  the  war  showed  to  be  necessary.  It  was  under 
this  authority,  for  example,  that  all  distinctive  appellations  as 
Regular  Army,  National  Guard,  and  National  Army,  were  dis- 

54  Nos.  15  and  16,  May  4,  1861.  See  also  Special  Order  No.  218,  A.  G.  O., 
Sept.  2,  1862,  by  which  President  Lincoln  ordered  all  the  clerks  and  em- 
ployees of  the  departments  in  Washington  to  be  organized  into  companies 
and  supplied  with  arms  and  ammunition,  "for  the  defense  of  the  capital." 
Richardson,  op.  cit.,  VI,  122. 

ss  See  Upton,  Military  Policy  of  ihe  United  States,  233-235;  Acts  of 
July  22,  25  and  29,  1861.  12  8tat.  at  L.,  268,  274,  279. 

se  30  Stat.  at  L.,  362  (Sec.  9). 

57  Sec.  3.    Wigmore,  op.  cit.,  385. 

58  See.  1.     Ibid.,  461. 


114  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES         [114 

continued,  and  all  the  land  forces  merged  into  one  United  States 
Army.59  It  was  likewise  under  this  authority  that  such  an  or- 
ganization as  the  Students'  Army  Training  Corps  was  added  to 
the  military  forces;60  that  new  services  were  added,  such  as  the 
Motor  Transport  Corps,  Chemical  Warfare  Service,  Air  Service, 
and  Tank  Corps ;  and  that  the  new  plan  of  organization  for  the 
army,  as  recently  announced  by  General  March,  was  put  into 
effect  without  any  further  action  on  the  part  of  Congress.61 


59  See  Summary  of  Annual  Report  of  Adjutant  General  of  the  Army,  in 
Official  U.  S.  Bulletin,  Jan.  8,  1919.  The  Selective  Service  Act  provided 
that  the  National  Guard  organizations  drafted  into  the  federal  service 
should  retain  their  State  designations,  ' '  as  far  as  practicable. ' ' 

eo  See  Official  U.  8.  Bulletin,  Oct.  1,  1918. 

6i  Ibid.,  Mar.  29,  1919.  The  new  Navy  reorganization  —  that  of  main- 
taining two  separate  major  fleets  instead  of  only  one  —  was  likewise  an- 
nounced as  going  into  effect  June  30,  1919.  N.  T.  Times  Current  Hist.  Mag., 
X,  253  (Aug.,  1919). 


CHAPTER  VII 

POWERS  OF  COMMAND 

The  Constitution  makes  the  President  the  Commander-in-Chief 
of  the  army  and  navy  of  the  United  States  and  of  the  state  mil- 
itia when  called  into  the  actual  service  of  the  United  States.1 
Under  this  provision  the  President  is  vested  with  a  function  than 
which,  according  to  a  well  known  writer,  there  is  none  "more 
significant  as  indicating  his  independent  and  exalted  position. ' ' 2 

Strangely  enough,  in  spite  of  this  extraordinary  grant  of 
power,  this  clause  of  the  Constitution  appears  to  have  aroused 
very  little  discussion  and  scarcely  any  serious  opposition  in  the 
Convention  of  1787.  Some  objections  were  evidently  made,  but 
rather  to  the  idea  of  the  President's  assuming  active  command 
in  the  field  than  to  his  exercise  of  the  general  powers  of  com- 
mand.3 The  members  of  the  Convention  probably  had  not  for- 
gotten the  trouble  and  embarrassment  caused  during  the  Revolu- 
tion by  congressional  interference  and  the  lack  of  a  centralized 
control  over  the  army.  They  were  very  likely  influenced  also  by 
the  precedents  in  the  practise  of  European  states,  in  former 
plans  of  union  for  the  colonies,  and  in  the  recently  established 
state  constitutions.  As  students  of  political  theory  they  were 
also  undoubtedly  impressed  with  the  notion  that  the  inherent 
nature  of  the  executive  office  made  it  the  proper  repository  for 
the  chief  command  of  the  military  and  naval  forces.* 

1  Art.  II,  Sec.  2,  Cl.  1. 

2  McClain,  Constitutional  Law  in  the  United  States,  210. 

3  See  Luther  Martin 's  letter  to  the  Maryland  legislature.  Elliot 's  De- 
lates, I,  378;    Farrand's  Eecords,  III,  217-218. 

*  This  idea  was  expressed  quite  recently  by  Senator  Bacon  as  follows : 
"I  want  to  give  my  idea  as  to  why  the  constitution  vests  in  the  President 
the  office  of  commander-in-chief.  The  President  is  an  Executive.  Upon 
him  devolves  the  execution  of  the  law  and  the  enforcement  of  the  law;  and 
the  enforcement  of  the  law  must  necessarily  be,  in  its  last  analysis,  through 

115 


116  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [116 

There  was  more  discussion  and  more  opposition  in  the  state 
ratifying  conventions.  Thus  Mr.  Miller,  in  the  North  Carolina 
convention,  expressed  himself  as  fearful  that  the  influence  of  the 
President,  particularly  over  the  military,  would  be  too  great,  that 
he  was  given  extensive  powers  too  easily  liable  of  abuse.  "He 
considered  it  as  a  defect  in  the  Constitution,  that  it  was  not  ex- 
pressly provided  that  Congress  should  have  the  direction  of  the 
motions  of  the  army. ' ' 5  On  the  whole,  however,  the  propriety 
of  such  a  power  in  the  President,  so  far  as  to  give  orders  and  ex- 
ercise a  general  supervision  over  military  and  naval  movements, 
was  not  seriously  questioned  even  in  the  state  conventions,  the 
opposition  again  being  largely  to  the  possibility  of  the  President 's 
assumption  of  personal  command  of  the  forces.6 

The  general  feeling  throughout  the  country  was  undoubtedly 
expressed  by  Hamilton  when  he  wrote :  ' '  The  propriety  of  this 
provision  is  so  evident  in  itself,  and  so  consonant  to  the  preced- 
ents of  the  State  constitutions  in  general,  that  little  need  be  said 
to  explain  or  enforce  it.  Even  those  of  them  which  have,  in  oth- 
er respects,  coupled  the  chief  magistrate  with  a  council,  have 
for  the  most  part  concentrated  the  military  authority  in  him 
alone.  Of  all  the  cares  or  concerns  of  government,  the  direction 
of  war  most  peculiarly  demands  those  qualities  which  distin- 
guish the  exercise  of  power  by  a  single  hand.  The  direction  of 
war  implies  the  direction  of  the  common  strength ;  and  the  power 
of  directing  and  employing  the  common  strength  forms  a  usual 
and  essential  part  in  the  definition  of  executive  authority. ' ' 7 

Altho  there  has  been  some  contention  that  Congress,  by  virtue 
of  its  power  to  declare  war  and  to  provide  for  the  support  of  the 
armed  forces,  is  a  superior  body,  and  that  the  President,  as  Com- 
mander-in-Chief,  is  "but  the  Executive  arm,  .  .  in  every  de- 
tail and  particular,  subject  to  the  commands  of  the  lawmaking 

the  military  arm.  Of  course  the  President  can  not  be  the  Supreme  Execu- 
tive unless  he  has  the  supreme  command  of  that  through  which  the  execu- 
tion of  the  law  must  be  enforced."  Cong.  Record,  XLIII,  Pt  3  (60  Cong., 
2  Bess.),  2542-2543. 

B Elliot's  Debates,  IV,  114. 

«  Story,  Commentaries  on  the  Constitution,  II  315 ;  cf.  remarks  of  Pat- 
rick Henry.  Elliot's  Debates,  III,  58-60. 

7  The  Federalist,  No.  73  (74),  (Goldwin  Smith  ed.,  p.  409);  cf.  also 
reply  of  Mr.  Spaight  to  Mr.  Miller.  Elliot 's  Debates,  IV,  114-115. 


117]  POWERS  OF  COMMAND  117 

power, ' ' 8  practically  all  authorities  agree  that  the  President,  as 
Commander-in-Chief,  occupies  an  entirely  independent  position, 
having  powers  that  are  exclusively  his,  subject  to  no  restriction 
or  control  by  either  the  legislative  or  judicial  departments.9 

The  line  of  demarcation  between  the  war  powers  of  the  Presi- 
dent and  those  of  Congress  is  not  clearly  drawn  in  the  Consti- 
tution,10 nor  are  the  President's  powers  as  Commander-in-Chief 
specifically  described  or  defined  by  that  instrument.  Hence  au- 
thorities in  general  hold  that  the  President  as  Commander-in- 
Chief  may  constitutionally  do  what  any  military  commander  may 
do  in  accordance  with  the  usual  practise  of  carrying  on  war 
among  civilized  nations;  that  he  must  be  guided  in  the  exercise 
of  such  power  wholly  by  his  own  judgment  and  discretion,  sub- 
ject to  his  general  responsibility  under  the  Constitution.11  Ac- 
cording to  the  Supreme  Court,  the  extent  of  these  powers  must 
be  determined  "by  their  nature  and  by  the  principles  of  our  in- 
stitutions. ' ' 12  For  a  closer  definition  we  must  therefore  look  to 
the  law  and  usage  of  the  military  service,  to  international  law 
and  custom,  and  to  the  general  practise  under  the  Constitution 
and  statutes  of  the  United  States.13 

From  these  sources  we  find  that  the  first  great  power  of  the 
President  as  Commander-in-Chief  of  the  armed  forces  in  time  of 
war  is  the  general  direction  of  the  military  and  naval  operations. 

s  Senator  Bacon  in  U.  S.  Senate,  Feb.  6,  1906.  Cong.  Eecord,  XL,  Pt.  3 
(59  Cong.,  1  Sess.),  2135.  On  a  later  occasion,  Senator  Spooner  replied 
very  aptly  to  a  similar  suggestion,  that  such  a  construction  would  mean 
that  ' '  the  Constitution  did  not  constitute  the  President  Commander-in- 
Chief  of  the  Army  and  Navy,  but  constituted  him  the  Adjutant-General  of 
the  Congress."  Cong.  Record,  XLI,  Pt.  2  (  59  Cong.,  2  Sess.),  1131. 

»Pomeroy,  Constitutional  Law  (Bennett's  ed.),  71;  Davis,  Treatise  on 
the  Military  Law  of  the  United  States,  323;  Mississippi  v.  Johnson,  4  Wall., 
475,  497  (1869) ;  Ogg  &  Beard,  National  Governments  and  the  World  War, 
100-101;  Secretary  Seward  in  letter  to  Lord  Lyons,  1861,  quoted  in  Wat- 
son, On  ihe  Constitution,  II,  917;  J.  W.  Garner,  in  Revue  de  Droit  Public 
et  de  la  Science  Politique,  XXXV,  10. 

10  It  was  attempted  by  the  Supreme  Court  in  Ex  parte  Milligan,  4  Wall., 
2,  139  (1866)  ;    see  supra,  19. 

11  Finley  &  Sanderson,  The  American  Executive  and  Executive  Methods, 
267;  Whiting,  War  Powers  under  the  Constitution,  82-83. 

12 £0;  parte  Milligan,  4  Wall.,  2,  139-140  (1866). 

is  Cf.  J.  W.  Garner,  in  Revue  de  Droit  Public  et  de  la  Science  Politique, 
XXXV,  13  (Jan-Mar.,  1918). 


118  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [118 

It  is  the  President  who  wages  war.  Congress  declares  war  and 
provides  the  means  for  carrying  it  on,  but  the  President  decides 
how  the  war  is  to  be  conducted  and  directs  the  campaigns.  This 
is  "a  despotic  power,"  says  Burgess,14  but  nevertheless  must  be 
confided  by  a  sound  political  science  to  the  President.  "The 
President  must  have  despotic  power  when  he  wages  war.  The 
safety,  the  life  perhaps,  of  the  state  requires  it. ' '  Other  author- 
ities also  hold  that  in  the  field  of  military  operations  there  are  no 
limitations  prescribed  by  the  Constitution  and  the  President's 
power  is  therefore  exclusive.  Thus  Lieber  says  that  the  direction 
of  military  movement  "belongs  to  command,  and  neither  the 
power  of  Congress  to  raise  and  support  armies,  nor  the  power  to 
make  rules  for  the  government  and  regulation  of  the  land  and 
naval  forces,  nor  the  power  to  declare  war,  gives  it  the  command 
of  the  army.  Here  the  constitutional  power  of  the  President  as 
commander-in-chief  is  exclusive. ' ' 15 

It  is  an  interesting  question  whether  the  President,  under  this 
exclusive  power,  may  assume  active,  personal  command  of  the 
army  and  navy,  in  time  of  war.  Authorities  do  not  all  agree  on 
this  point.  Some  claim  that  the  President  is  essentially  a  civil 
officer  and  that  it  is  not  intended  that  he  shall  take  active  com- 
mand in  time  of  hostilities  ;16  others  say  outright  that  the  Presi- 
dent "has  all  the  powers  of  personal  command;"17  while  still 
others  express  themselves  as  doubtful.  Thus  Watson  thinks  it 
by  no  means  certain  that  the  President  has  such  power,  since  if 
he  should  undertake  to  command  the  military  and  naval  forces 
in  time  of  war,  he  would  necessarily  be  prevented  from  executing 
other  important  duties  required  of  him  by  the  Constitution. 
Watson  admits,  however,  that  if  the  President  insisted  on  assum- 
ing personal  command  of  the  forces,  it  would  be  difficult  and 
probably  impossible  to  restrain  him.18 

While  the  expediency  of  such  action  on  the  part  of  the  Presi- 
dent may  be  doubted,  there  does  not  seem  to  be  any  ground  for 

i*  Political  Science  and  Comparative  Constitutional  Law,  II,  261. 

is  Lieber,  Eemarlcs  on  Army  Regulations,  18 ;  see  also  Watson,  On  the 
Constitution,  II,  913-914;  Von  Hoist,  Constitutional  Law  of  the  United 
States,  194. 

is  McClain,  Constitutional  Law,  210. 

17  Finley  &  Sanderson,  op.  cit.,  267. 

is  Watson,  On  tlie  Constitution,  II,  919 ;  cf.  Miller,  On  the  Constitution, 
163;  Von  Hoist,  Constitutional  Law  of  the  United  States,  197. 


119]  POWERS  OF  COMMAND  119 

questioning  his  power.  The  matter  was  specifically  raised,  dis- 
cussed and  determined  in  the  Constitutional  Convention  of  1787. 
Thus  the  New  Jersey  plan  presented  by  Mr.  Paterson  on  June 
15  authorized  the  Executive  to  direct  all  military  operations, 
' '  provided  that  none  of  the  persons  composing  the  federal  Execu- 
tive shall  on  any  occasion  take  command  of  any  troops,  so  as 
personally  to  conduct  any  enterprise  as  General  or  in  any  other 
capacity."19  Hamilton's  plan  likewise  vested  the  chief  com- 
mand and  direction  of  war  in  the  Executive,  but  with  the  proviso 
that  "he  shall  not  take  the  actual  command,  in  the  field,  of  an 
army,  without  the  consent  of  the  Senate  and  Assembly. ' ' 20 

The  action  of  the  Convention  in  refusing  to  adopt  any  of  these 
specific  proposals,21  and  the  further  attempts  in  the  state  ratify- 
ing conventions  to  secure  amendments  expressly  forbidding  such 
exercise  of  command  by  the  President,22  certainly  make  it  clear 
that  the  framers  of  the  Constitution  understood  and  intended 
that  the  President  should  have  the  right.  Hamilton  but  reflected 
the  general  interpretation  of  the  Constitution  when  he  referred 
to  the  President  in  this  connection  as  the  "first  general  and  ad- 
miral of  the  Confederacy. ' ' 2S 

While  there  is  therefore  no  doubt  as  to  the  constitutional  right 
of  the  President  to  assume  personal  command  of  the  armed  forces 

19  Elliot's  Debates,  I,  176. 

20  Ibid.,  V,  587. 

21  See  Luther  Martin 's  letter  to  the  Maryland  legislature :  ' '  Objections 
were  made  to  that  part  of  the  article,  by  which  the  President  is  appoint- 
ed Commander -in-Chief  of  the  army  and  navy  of  the  United  States,  and  of 
the  militia  of  the  several  States,  and  it  was  wished  to  be  so  far  restrained, 
that  he  should  not  command  in  person ;  but  this  could  not  be  obtained. ' ' 
Ibid.,  I,  378;  Farrand's  Records,  III,  217-218. 

22  Thus  the  New  York  convention  proposed  an  amendment,  ' '  That  the 
President  or  person  exercising  his  powers  for  the  time  being,  shall  not 
command  an  army  in  the  field  in  person,  without  the  previous  desire  of 
Congress ; ' '  while  in  the  Maryland  convention  a  similar  amendment  was 
submitted,    but    negatived    in    committee    and   never    reported..EWotf  's   De- 
bates, I,  330;  II,  553.  In  the  1st  Congress  Mr.  Tucker  (S.  C.)  proposed  an 
amendment   striking  out  the  words   "be  Commander-in-Chief "   from  the 
article    defining    the    President's    powers    and    substituting    the    phrase 
"have  power  to   direct    (agreeably  to   law)    the   operations."      This  was 
probably  in  line  with  the  New  York  amendment;  but  on  a  vote  to  refer 
to  the  Committee  of  the  Whole,  it  was  negatived.  Annals  of  Cong.,  I,  762, 
763. 

23  The  Federalist,  No.  68   (Goldwin  Smith  ed.,  p.  381). 


120  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [120 

at  his  discretion,  the  sound  construction  of  the  constitutional 
provision  is  that  no  such  action  on  his  part  was  contemplated  un- 
less in  an  extraordinary  emergency ;  that  the  power  of  personal 
command  was  vested  in  the  President  principallj  for  the  pur- 
pose of  giving  him  that  control  over  military  and  naval  opera- 
tions which  is  a  necessary  attribute  of  the  executive  branch  of  the 
government.24 

No  President  has  yet  seen  fit  to  exercise  his  right  to  take  per- 
sonal command  of  the  forces  in  time  of  war,  altho  Washington 
on  one  occasion  during  his  administration  did  actually  take  the 
field  in  command  of  militia  forces  called  out  to  suppress  an  in- 
surrection.25 President  Polk  also  took  a  keen  personal  interest  in 
the  military  movements  of  the  Mexican  War,  and  at  one  time,  in 
order  to  carry  his  point  against  a  refractory  Adjutant-General, 
insisted  on  his  right  as  Commander-in-Chief  to  have  his  instruc- 
tions regarded  as  a  military  order  to  be  promptly  obeyed.26 
President  Lincoln,  while  never  exercising  actual  personal  com- 
mand, frequently  visited  his  generals  in  the  field,  advised  with 
them,  drew  up  plans  of  campaign,  and  issued  among  others  his 
famous  General  War  Order  No.  1  (January  27,  1862),  and  Spe- 
cial War  Order  No.  1  (January  31,  1862),  the  former  ordering 
a  general  movement  of  the  land  and  naval  forces  to  be  begun 
against  the  insurgents  on  February  22,  the  latter  ordering  an  ex- 
pedition against  Manassas  Junction.27 

Presidents  McKinley  and  Wilson  seem  to  have  left  the  active 
direction  of  military  movements  entirely  to  the  military  and  nav- 
al commanders,  altho  with  the  modern  means  of  communica- 
tion the  President  might,  much  more  easily  than  before,  assume 

24  Cf.  opinion  of  Secretary  of  War  Monroe,  given  to  a  committee  of 
Congress,  Feb.  11,  1815.  Am.  State  Papers,  Mil.  Affairs,  I,  606;  see  also 
Story,   Commentaries   on   the  Constitution,   II,   315 ;   Elliot's  Debates,   II, 
366. 

25  Infra,  135. 

26  Diary  of  James  K.  Polk,  III,  31. 

27  Works  of  Abraham  Lincoln  (Federal  ed.),  V,  423,  425;  Rhodes,  His- 
tory of  the  United  States,  III,  581.    But  cf.  Lincoln's  letter  to  Gen.  Grant, 
Apr.   30,  1864:    "Not  expecting  to   see  you  before  the   spring  campaign 
opens,  I  wish  to  express,  in  this  way,  my  entire  satisfaction  with  what  you 
have  done  up  to  this  time,  so  far  as  I  understand  it.     The  particulars  of 
your  plans  I  neither  know  nor  seek  to  know."  McPherson,  History  of  the 
Rebellion,  425. 


121]  POWERS  OF  COMMAND  121 

active  charge  of  military  and  naval  operations.28  Modern  war 
has,  however,  also  added  such  a  heavy  burden  of  civil  duties  upon 
the  President  as  to  make  it  practically  impossible  for  him  to  de- 
vote any  time  to  the  purely  military  side,  and  it  is  not  likely 
that  any  President  will  ever  in  the  future  attempt  to  exercise 
his  right  of  personal  command. 

As  a  necessary  part  of  his  power  to  direct  the  military  and 
naval  operations,  the  President  in  time  of  war  has  entire  control 
of  the  movements  of  the  army  and  navy.  Congress  has,  under 
the  Constitution,  the  sole  power  to  raise  and  support  armies  and 
to  provide  and  maintain  a  navy  ;29  but  after  the  forces  have  been 
provided  and  war  has  been  begun,  the  President  may  order  them 
anywhere  he  will  for  the  purpose  of  carrying  on  the  war  to  a 
successful  conclusion. 

An  eminent  authority  thinks  that  Congress  could  probably  by 
law  forbid  the  troops  being  sent  out  of  the  jurisdiction  of  the 
United  States  in  time  of  peace  ;30  but  in  time  of  war  the  author- 
ity of  the  President  is  recognized  as  being  absolute  as  to  where 
the  war  is  to  be  conducted,  whether  to  await  the  onslaughts  of 
the  enemy  and  wage  a  purely  defensive  war  within  the  bound- 
aries of  the  United  States,  or  to  send  the  armed  forces  of  the  Uni- 
ted States  out  of  the  country  to  carry  on  an  offensive  war  in  the 
enemy  territory,  in  the  territory  of  an  ally,  or  perhaps  even  in 
the  territory  of  a  neutral.  "The  power  to  use  an  army,"  says 
a  distinguished  ex- Justice  of  the  Supreme  Court,  "is  co-exten- 
sive with  the  power  to  make  war;  and  the  army  may  be  used 
wherever  war  is  carried  on,  here  or  elsewhere.  There  is  no  lim- 
itation upon  the  authority  of  Congress  to  create  an  army  and  it 
is  for  the  President  as  Commander-in-Chief  to  direct  the  cam- 
paigns of  that  army  wherever  he  may  think  they  should  be  car- 
ried on."  31 

As  a  matter  of  fact,  there  never  has  been  any  serious  doubt  as 
to  the  President's  constitutional  power  to  order  the  regular 

28  See  description  of  how  President  McKinley  kept  in  touch  with  the 
military  operations  during  the  Spanish  war.  Beard,  Readings  in  Amer- 
ican Politics  and  Government,  316. 

20  Art.  I,  Sec.  2,  01.  12,  13. 

30  Root,  Colonial  and  Military  Policy  of  the  United  States,  157. 

31  Charles  E.  Hughes,  ' '  War  Powers  under  the  Constitution, ' '  in  Cen- 
tral Law  Jour.,  LXXXV,  206-214  (Sept.  21,  1917).     See  also  Fleming  v. 
Page,  9  How.,  603,  615  (1849). 


122  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [122 

forces  wherever  he  may  think  best  in  the  conduct  of  a  war,  wheth- 
er within  or  without  the  limits  of  the  United  States,  nor  has  any 
President  hesitated  to  make  use  of  that  power  in  any  foreign 
war  in  which  the  United  States  has  been  engaged.  Regular 
troops  were  by  order  of  the  President  sent  to  Canada  in  the  War 
of  1812,32  to  Mexico  in  1846,  to  Cuba,  Porto  Eico,  and  the  Philip- 
pines during  the  war  with  Spain,  and  to  France,  Italy,  and 
Russia  during  the  recent  war  with  Germany.33 

Just  as  the  President  decides  when  and  where  troops  shall  be 
employed  in  time  of  war,  so  he  alone  likewise  determines  how  the 
forces  shall  be  used,  for  what  purposes,34  the  manner  and  extent 
of  their  participation  in  campaigns,  and  the  time  of  their  with- 
drawal. Thus  the  troops  ordered  to  France  during  the  recent 
war  were  sent  for  the  general  purpose  of  waging  active  war 
against  the  German  military  forces  and  of  bringing  about  their 
defeat ;  were  with  that  end  in  view  instructed  to  cooperate  with 
the  Allies  even  to  the  extent  of  being  intermingled  on  occasion 
with  Allied  troops  and  placed  under  the  command  of  superior 

32  The  act  of  Feb.  6,  1812,  authorized  the  President  to  accept  50,000 
volunteers  to  do  duty  whenever  he  deemed  proper,  which  President  Madi- 
son said  was  passed  "with  a  view  to  enable  the  Executive  to  step  at  once 
into  Canada."  Writings  of  James  Madison,  VIII,  176. 

ss  The  constitutionality  of  the  President 's  action  in  sending  troops  to 
France  was  upheld  by  Federal  Judge  Speer  in  a  case  decided  Aug.  20,  1917. 
See  also  address  by  ex-Senator  Boot  at  Chicago,  Sept.  14,  1917,  in  The  War, 
Rusian  and  Political  Addresses,  68. 

For  an  opposite  view,  see  a  somewhat  bombastic  open  letter  to  the  Secre- 
tary of  War  by  Hannis  Taylor,  in  which  he  says :  ' '  The  unauthorized  trans- 
portation by  the  executive  power  of  our  conscripted  National  Militia  to  the 
battlefields  of  Europe,  in  defiance  of  Section  8,  Article  I,  of  the  Con- 
stitution, will  stand  out  in  the  time  to  come  as  the  most  stupendous  act  of 
illegality  in  all  our  history."  Cong.  Eecord,  65  Cong.,  3  Sess.  (Jan.  20, 
1919),  1728-1729. 

A  House  resolution  (H.  J.  Res.  166)  was  introduced  July  29,  1919,  pro- 
posing an  amendment  to  forbid  Congress  to  conscript  armies  to  serve  out- 
side the  United  States  to  execute  orders  of  any  international  body  or  trib- 
unal. Ibid.,  66  Cong.,  1  Sess.,  3561. 

34  <  <  The  policy  to  be  followed  by  our  troops  in  any  country  is  one  to  be 
determined  by  the  Executive."  Statement  of  Maj.  G-en.  Graves  in  message 
to  his  troops  in  Bussia,  quoted  in  The  Nation,  CVIII,  853  (May  31,  1919). 
The  Nation  comments  as  follows:  "So  much  for  Wilsonian  Bealpolitik  by 
comparison  with  the  old-fashioned  theory  that  it  is  the  business  of  Congress 
to  declare  war." 


123]  POWERS  OF  COMMAND  123 

Allied  officers ;  and  were  withdrawn  from  foreign  soil  as  rapidly 
as  possible  after  that  purpose  had  been  accomplished. 

The  Siberian  expedition,  while  of  course  intended  to  aid  in  a 
general  way  in  bringing  about  the  defeat  of  the  Central  Powers, 
had  the  more  limited  and  particular  purposes  of  saving  the 
Czecho-Slovak  armies  in  Russia  from  destruction,  and  of  steady- 
ing the  efforts  of  the  Russians  at  self-defense  and  the  establish- 
ment of  law  and  order.  It  was  not  withdrawn  upon  the  defeat 
of  the  Central  Powers  and  the  conclusion  of  the  armistice,  but 
was  continued  for  some  time  in  order  ' '  that  we,  with  the  concur- 
rence of  the  great  allied  powers,  may  keep  open  a  necessary  ar- 
tery of  trade  and  extend  to  the  vast  population  of  Siberia  the 
economic  aid  essential  to  it  in  peace  time,  but  indispensable  un- 
der the  conditions  which  have  followed  the  prolonged  and  ex- 
hausting participation  by  Russia  in  the  war  against  the  Central 
Powers."  To  that  end,  Major  General  Graves,  in  command  of 
the  American  troops  in  Siberia,  was  instructed  "not  to  interfere 
in  Russian  affairs,  but  to  support  Mr.  Stevens"  (the  American 
director  of  the  Russian  Railway  Service  Corps)  in  keeping  open 
the  Siberian  railway.35  In  contradiction  to  this  policy  of  con- 
tinuing the  American  troops  in  Siberia,  the  small  contingent  sent 
to  Murmansk  and  Archangel  in  Russia  proper  was  entirely  with- 
drawn by  July  1,  1919.36  The  action  in  every  case  was  deter- 
mined solely  by  authority  of  the  President,  acting  under  his  pow- 
er as  Commander-in-Chief  of  the  army  and  navy. 

There  has  been  considerable  bitter  criticism  in  Congress  of  the 
President 's  Russian  or  Siberian  policy ;  there  has  also  been  some 
question  as  to  his  power  to  send  and  continue  troops  there,  es- 
pecially since  the  signing  of  the  armistice  and  the  virtual  ending 
of  the  war ;  and  there  have  been  some  attempts  to  assert  for  Con- 

35  See  statement  of  President  Wilson,  July  22,  1919,  in  response  to  a 
Senate  resolution  of  inquiry.  Cong.  Eecord,  66  Cong.,  1  Sess.  (Sept.  3, 
1919),  5075.  The  President's  statement  is  also  printed  as  Senate  Docu- 
ment No.  607.  See  also  statement  of  the  Acting  Secretary  of  State  re- 
garding the  purposes  of  the  Siberian  expedition.  Official  Bulletin,  Aug.  5, 
1918.  Secretary  of  War  Baker  announced  on  Jan.  13,  1920,  that  the  Presi- 
dent had  authorized  the  withdrawal  of  the  American  forces  from  Siberia, 
and  that  the  movement  of  troops  would  begin  at  once. 

s«  See  statement  of  Gen.  March,  Chief  of  Staff,  June  16,  1919. 
Hearings  before  the  Subcommittee  of  the  Committee  on  Military  Affairs, 
U.  S.  Senate,  66  Cong.,  1  Sess.,  50. 


124  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [124 

gress  the  right  to  control  the  movements  of  the  forces  and  to  com- 
pel their  withdrawal.  Senator  Borah  (Idaho)  in  a  recent  speech 
declared  the  presence  of  American  troops  in  Siberia  an  unlawful 
usurpation  of  power  by  the  President  and  demanded  their  im- 
mediate withdrawal.  "We  are  utterly  at  sea,"  he  said,  "as  to 
why  our  armed  forces  are  carrying  on  war  in  Russia,  but  what- 
ever is  being  done  in  that  country  in  the  way  of  armed  interven- 
tion is  without  authority.  .  .  There  can  be  no  plainer  usurpa- 
tion of  power  than  to  conscript  men  to  war  against  Germany  and 
then  to  use  them  to  take  care  of  internal  conditions  in  Russia. '  '37 
Senator  Edge  (New  Jersey)  introduced  a  resolution  June  23, 
1919,  not  only  declaring  the  state  of  war  terminated,  but  order- 
ing "That  all  American  soldiers  of  the  forces  of  the  United 
States  now  in  Europe  shall  be  withdrawn  from  such  foreign  ser- 
vice without  loss  of  time  and  be  returned  to  the  United  States, 
except  such  soldiers  of  the  United  States  Regular  Army  as  have 
enlisted  specifically  for  service  in  Europe. ' ' 38  Senator  McCor- 
mick  (Illinois)  introduced  a  similar  resolution  September  8,  ex- 
pressing it  as  the  sense  of  the  Senate  ' '  that  no  additional  troops 
be  sent  overseas  except  by  the  express  authority  of  Congress," 
and  "that  all  troops  serving  in  Europe  and  Siberia  should  be 
brought  home  with  the  utmost  dispatch. ' ' 39 

Other  similar  resolutions  were  proposed  from  time  to  time,40 
but  only  one  was  adopted,  that  by  Senator  Johnson  (California), 
which,  however,  was  merely  a  request  for  information  as  to 
the  general  policy  respecting  Siberia  and  the  maintenance 
of  troops  there.41  It  seems  quite  clear,  therefore,  that  even 

87  #.  F.  Times,  Sept.  6,  1919;  cf.  also  statement  of  Chairman  Porter,  of 
the  House  Committee  on  Foreign  Affairs,  that  the  drafted  men  were  sent 
to  Siberia  with  ''absolutely  no  justification  in  law."  Ibid.,  Aug.  24,  1919. 
But  compare  Senator  Borah's  remarks  in  the  Senate,  Feb.  16,  1909:  "Con- 
gress has  not  the  power  to  say  that  an  army  shall  be  at  a  particular  place 
at  a  particular  time  or  shall  maneuver  in  a  particular  distance.  That  be- 
longs exclusively  to  the  Commander-in-Chief  of  the  Army."  Cong.  Eecord, 
XLIII,  Pt.  3  (60  Cong.,  2  Sess.),  2452.  See  also  his  speech  of  Nov.  4, 
1919.  Ibid.,  66  Cong.,  1  Sess.,  esp.  8465,  8466. 

as  Cong.  Record,  66  Cong.,  1  Sess.,  1629. 

39  Ibid.,  5284. 

40  By   Senators   Johnson   and   Poindexter,   and   Representatives   Ehodes, 
Wood,  and  Mason.  Ibid.,  65  Cong.,  3  Sess.,  3188,  3410-3417,  3786;  66  Cong., 
1  Sess.,  64,  4336,  4704,  4937. 

«  Ibid.,  66  Cong.,  1  Sess.,  63,  1631,  1884,  1977. 


125]  POWERS  OF  COMMAND  125 

under  the  stress  of  bitter  partisanship  and  despite  all  its 
mutterings  and  criticisms  of  executive  policy,  Congress  will  be 
slow  to  deny  the  power  of  the  President  as  Commander-in-Chief 
to  send  and  maintain  troops  of  the  army  and  navy  abroad  at  his 
discretion,  or  to  assert  any  definite  claim  of  control  for  itself. 
On  the  other  hand,  the  Executive  has  not  hesitated  to  define  its 
policy  or  to  assert  its  intention  of  adhering  to  and  exercising  its 
powers  under  the  Constitution  with  respect  to  the  movement  of 
troops.42 

In  connection  with  his  control  of  military  and  naval  opera- 
tions, the  President  possesses  numerous  other  powers.  In  fact,  it 
is  generally  held  that,  as  Commander-in-Chief,  he  may  do  prac- 
tically anything  calculated  to  weaken  and  destroy  the  fighting 
power  of  the  enemy  and  bring  the  war  to  a  successful  conclusion, 
subject  of  course  to  the  rules  of  civilized  warfare  prescribed  by 
international  law  and  custom.43  He  may  employ  secret  agents 
to  obtain  information  concerning  the  position,  resources,  and 
general  condition  of  the  enemy  ;44  he  may  establish  a  blockade  of 
the  enemy's  ports,  including  those  of  insurgent  states  as  well  as 
of  a  foreign  enemy  ;45  he  may  order  an  invasion  of  the  enemy 's 

42  President  Wilson  stated,  in  a  letter  to  Fred  McAver  of  Chicago,  that 
the   drafted  troops  in   Siberia  were  being   withdrawn  as  rapidly  as  they 
could  be  replaced  by  volunteers,  but  indictted  that  there  was  no  intention 
of  withdrawing  the  entire  expedition  for  some  time.  N.  T.   Times,  Aug. 
27,  1919.     Secretary  Baker,  in  a  statement  to  the  House  Military  Affairs 
Committee,  Sept.  15,  1919,  insisted  that  the  American  soldiers  in  Siberia 
could  not  be  withdrawn  because  of  "real  military  and  humanitarian  rea- 
sons." Ibid.,  Sept.  16,  1919.     "Representative  Mason  (111.)  on  this  occasion 
questioned  the  right  of  the  President  to  send  troops  into  a  country  with 
which  we  are  not  at  war,  but  was  opposed  by  Representative  Kahn  (Cal.), 
Chairman  of  the  Committee,  who  cited  as  a  precedent  the  sending  of  ma- 
rines into  Haiti.  Ibid.  See  also  statement  of  Gen.  March,  Chief  of  Staff, 
before  the  Senate  Subcommittee  on  Military  Affairs,  June  16,  1919.  Hear- 
ings before  the  Subcommittee,  50,  51. 

43  Fairlie,  National  Administration  of  the  United  States,  33. 

44  Tottera  v.  United  States,  92  U.  S.,  105,  106  (1875). 

45  Prize  Cases,  2  Black,  635   (1862).  Ordinarily  such  a  blockade  is  es- 
tablished by  proclamation  of  the  President.     It  may,  however,  be  estab- 
lished without  this   action  by  the   President,   but   by  the   commander   of 
naval  forces  as  an  adjunct  to  naval  operations  against  other  blockaded 
ports  and  the  enemy's  fleet.     The  Adula,  176  U.  S.,  361,  366-367   (1900). 
President  Lincoln  established  the  blockade  of  the  ports  of  the  South  by 
proclamations  of  Apr.  19  and  27,  1861;    President  McKinley  the   Cuban 


126  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [126 

country  and  establish  the  authority  of  the  United  States  over  it, 
altho  he  cannot  thereby  enlarge  the  boundaries  of  the  United 
States  nor  extend  the  operation  of  our  institutions  and  laws  be- 
yond the  limits  previously  assigned  to  them;46  he  may  even  set 
up,  on  his  own  exclusive  authority  as  Commander-in-Chief,  a 
temporary  government  in  conquered  territory.47 

The  appointment  and  dismissal  of  officers  for  the  army  and 
navy  is  another  of  the  President 's  prerogatives  as  Commander-in- 
Chief,  but  one  which  is  subject  to  some  control  by  Congress.48 
In  the  first  place,  no  officer  can  be  appointed  by  the  President 
until  Congress  has  created  the  grade  and  made  provision  for  it. 
President  Polk  complained  bitterly  because  Congress  refused  to 
create  the  grade  of  Lieutenant-General  during  the  Mexican  War 
and  thus  permit  him  to  appoint  a  commander  to  outrank  Scott 
and  Taylor.  "My  situation,"  he  said,  "is  most  embarrassing.  I 
am  held  responsible  for  the  War,  and  I  am  required  to  entrust 
the  chief  command  of  the  army  to  a  General  in  whom  I  have  no 
confidence. ' ' 49  During  the  recent  war,  however,  Congress  gave 
the  President  authority  (with  the  consent  of  the  Senate)  "to  ap- 
point for  the  period  of  the  existing  emergency  such  general  of- 
ficers of  appropriate  grades  as  may  be  necessary.  .  , "  50  thus 
vesting  the  President  with  wide  discretionary  powers,  not  only 
of  appointment  but  also  of  determining  what  higher  grades 
might  be  necessary.  Under  this  provision,  Pershing,  Bliss,  and 
March  were  each  appointed  to  the  rank  of  full  General,  a  grade 
thus  revived  by  the  President  for  the  period  of  the  war.51 

In  the  second  place,  the  appointment  of  all  officers  of  the  army 
and  navy  is  subject  to  confirmation  by  the  Senate,  unless  other- 
wise provided  by  law.52  As  a  matter  of  fact,  confirmation  by  the 

blockade  by  proclamations  of  Apr.  22  and  June  27,  1898.  Eichardson,  Mes- 
sages and  Papers  of  the  Presidents,  VI,  14,  15 ;  X,  202-203,  206. 

*e  Fleming  v.  Page,  9  How.,  603,  615  (1849). 

« Infra,  Ch.  IX. 

*»£/.  Burgess,  Political  Science  and  Comparative  Constitutional  Law, 
II,  261-262. 

*9  Diary  of  James  K.  Polk,  II,  393-394. 

so  Selective  Service  Act  of  May  18,  1917  (Public  No.  12,  65  Cong.).  See 
Sec.  8. 

si  Gen.  Pershing  has  since  been  commissioned  permanent  General,  by 
authority  of  act  of  Congress.  See  N.  T.  Times,  Sept.  4,  1919. 

52  Constitution,  Art.  II,  See.  2,  Cl.  2. 


127]  POWERS  OF  COMMAND  127 

Senate  has  generally  been  required  only  in  the  case  of  the  higher 
military  and  naval  officers,  the  rule  during  the  recent  war  being, 
"That  officers  with  rank  not  above  that  of  Colonel  shall  be  ap- 
pointed by  the  President  alone,  and  officers  above  that  grade  by 
the  President  by  and  with  the  advice  and  consent  of  the  Sen- 
ate."53 

Finally,  Congress,  under  its  power  "to  make  rules  for  the  gov- 
ernment and  regulation  of  the  land  and  naval  forces, ' ' 5*  may 
prescribe  rules  of  eligibility  governing  the  appointment  and  pro- 
motion of  officers,  and  in  that  way  limit  to  a  considerable  extent 
the  President's  power  of  appointment.  It  has  been  held,  how- 
ever, that  such  rules  can  prescribe  only  the  mode  in  which  va- 
cancies shall  be  filled,  and  hence  do  not  confer  upon  the  officer 
next  in  the  order  of  succession  any  right  to  the  vacant  place,  nor 
control  the  President  in  his  discretionary  power  to  appoint  some 
other  individual.55  Congress  can  in  no  way  dictate  what  appoint- 
ments shall  be  made;  it  can  only  determine  how  they  shall  be 
made  and  limit  somewhat  the  field  of  selection  by  prescribing 
certain  rules.  Moreover,  the  President  is  entirely  free  to  select 
whom  he  will  from  among  the  officers  for  any  particular  duty  or 
command,  without  consulting  the  Senate  and  without  regard 
to  seniority  in  rank.  General  Pershing  was  thus  chosen  to  com- 
mand the  American  Expeditionary  Force  in  the  recent  war,  altho 
he  was  not  the  ranking  officer  in  the  army  at  the  time.  In  fact, 
any  question  that  may  arise  as  to  the  relative  rank  of  officers  in 
the  various  branches  of  the  service  is  understood  to  be  within  the 
power  of  the  President,  as  Commander-in-Chief,  to  settle  without 
legislation  by  or  consultation  with  Congress.56 

The  power  to  dismiss  or  remove  military  and  naval  officers,  es- 
pecially in  time  of  war,  is  likewise  considered  one  of  the  prerog- 
atives of  the  President  as  Commander-in-Chief,  and  a  necessary 

ss  Selective  Service  Act,  Sec.  1. 

s*  Constitution,  Art.  I,  Sec.  8,  CL  14. 

ss  13  Op.  Atty.  Gen.,  13,  14 ;  29  ibid.,  254,  256.  See  also  message  of 
President  Monroe,  Apr.  13,  1822,  and  veto  message  of  President  Harrison, 
Feb.  26,  1891.  Richardson,  op.  cit.,  II,  132,  133;  IX,  138.  Cf.  Taft,  Our 
Chief  Magistrate  and  His  Powers,  127-128;  and  Story,  Commentaries,  II, 
350,  n.  2.  During  the  recent  war,  the  rules  governing  appointments,  pro- 
motions, and  assignments  were  announced  by  General  Order.  Official  U.  S. 
Bulletin,  Sept.  20,  1918. 

06  Diary  of  James  K.  Polk,  I,  284-285. 


128  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [128 

incident  of  his  right  to  appoint  them.57  In  fact,  it  has  been  held 
by  distinguished  authority  to  be  an  absolute  power,  tho  one  that 
ought  to  be  exercised  with  great  discretion,58  and  extends  even 
to  the  removal  of  officers  appointed  with  the  consent  of  the  Sen- 
ate.59 From  the  very  organization  of  the  government  under  the 
Constitution  till  the  Civil  War,  the  power  to  dismiss  officers  of 
the  army  and  navy  from  the  service  was  regarded  as  vested  in 
the  President  by  the  Constitution,  was  not  questioned,  and  came 
to  be  considered  as  one  of  the  inherent  powers  of  the  Executive 
office.60  Congress  in  1862  specifically  recognized  this  power  of 
the  President  in  an  act 61  which  the  Attorney-General  later  char- 
acterized as  "simply  declaratory  of  the  long-established  law."  G2 
However,  by  the  acts  of  March  3,  1865,  and  July  13, 1866,  Con- 
gress divested  the  President  of  his  absolute  power  of  removal  at 
all  times,  requiring  that  in  time  of  peace  an  officer  could  be  dis- 
missed only  upon  sentence  of  a  court-martial  or  as  commutation 
of  such  sentence.63  In  1867,  Congress  went  further,  and  in  the 
Army  Appropriation  Act  of  that  year  provided  that  all  army 
orders  should  pass  through  the  General  of  the  Army,  who  was 
required  to  keep  his  headquarters  at  Washington  and  who  should 
not  be  removed,  suspended,  relieved  from  his  command,  or  as- 
signed to  duty  elsewhere,  except  at  his  own  request  or  by  the  ap- 
proval of  the  Senate.64  President  Johnson  signed  this  act  under 
protest,  holding  that  it  in  effect  deprived  the  President  of  the 
command  of  the  army;  and  having  obviously  been  passed  as  a 
measure  designed  to  control  him  in  particular,  its  injustice  and 
inexpediency  were  soon  recognized  and  it  was  soon  repealed.65 
The  Supreme  Court  further  held,  with  regard  to  the  act  of  1866, 
that  it  was  in  effect  only  a  declaration  that  the  power  thereto  ex- 
ercised by  the  President  of  summarily  dismissing  officers  with- 

57  Burgess,  op.  tit.,  II,  262;  Blake  v.  United  States,  103  U.  S.,  227,  236 
(1880). 

68  Memoirs  of  John  Quincy  Adams,  IV,  410. 

wShurtleff  v.  United  States,  189  U.  S.,  311,  314-315  (1903). 

604  Op.  Atty.  Gen.,  1,  609-613;  6  ibid.,  5-6;  8  ibid.,  230-232;  12  ibid., 
424-426.  Cf.  United  States  v.  Outline,  17  How.,  283,  306-307  (1854). 

si  Act  of  July  17,  1862.     12  8tat.  at  L.,  594,  596  (Sec.  17). 

62  15  Op.  Atty.  Gen.,  421. 

es  13  Stat.  at  L.,  48-9;  14  ibid.,  92. 

6*  Act  of  Mar.  2,  1867.  14  Stat.  at  L.,  486-487  (Sec.  2). 

es  July  15,  1870. 


129]  POWERS  OF  COMMAND  129 

out  the  consent  of  the  Senate,  should  not  exist  in  time  of  peace. 
' '  There  was,  we  think,  no  intention  to  deny  or  restrict  the  power 
of  the  President,  by  and  with  the  advice  and  consent  of  the  Sen- 
ate, to  displace  them  by  the  appointment  of  others  in  their 
places. ' ' 66 

The  right  of  the  President  to  make  removals  at  his  discretion 
in  time  of  war  remained  unimpaired  by  these  acts  of  Congress, 
and  was  again  specifically  recognized  during  the  recent  war  by 
the  Selective  Service  Act.67  Efficiency  Boards  for  examining 
into  the  qualifications  of  officers  were  provided  for  by  that  stat- 
ute, but  it  was  held  that  these  were  to  be  convened  merely  as  a 
matter  of  administrative  convenience  for  the  information  of  the 
President,  and  ' '  do  not  impair  or  restrict  the  power  of  the  Presi- 
dent to  discharge  for  any  cause  which,  in  the  judgment  of  the 
President,  would  promote  the  public  service."  It  was  further 
held  that,  even  tho  the  President  dismissed  an  officer  because  of 
the  recommendation  of  an  illegally  and  irregularly  constituted 
board,  "the  legality  of  an  executed  discharge  by  the  President 
cannot  afterwards  be  questioned,  because  of  the  full  and  summary 
powers  conferred  upon  him  by  the  statute. ' ' 68  Other  opinions 
have  likewise  upheld  the  inherent,  as  well  as  the  statutory,  pow- 
er of  the  President  to  dismiss  officers  in  time  of  war,  without  the 
consent  of  the  Senate,  or  the  recommendation  of  a  board,  or  trial 
by  court-martial.69  Having  once  dismissed  an  officer,  however, 
or  accepted  his  resignation,  the  President  cannot  revoke  that  ac- 
tion and  thereby  restore  the  officer  to  his  rank  and  office,  but 
must  make  a  new  nomination  and  secure  a  new  confirmation  by 
the  Senate,  if  confirmation  was  required  in  the  first  instance.70 

In  spite  of  the  restrictions  that  have  been  noted,  the  Presi- 
dent's power  to  appoint  and  dismiss  officers  is  such  as  to  give 
him  practically  complete  control  of  the  army  and  navy,  especial- 
ly in  time  of  war,  and  to  add  considerably  to  his  powers  and 

so  Blake  v.  United  States,  103  U.  S.,  227,  236  (1880). 
«T  Sees.  1,  9. 

68  Opinions    of   Acting   Judge   Advocate    General   Mayes,    May    10   and 
July  15,  1918,  in  Wigmore,  Source-Book  of  Military  Law  and  War-Time 
Legislation,  752-755,  790-794. 

69  Cf.  opinion  of  Acting  Judge  Advocate  General  Ansell,  Apr.  9,  1918. 
Ibid.,  731-735. 

loMimmacJc  v.  United  States,  97  U.  S.,  426,  435,  437-438  (1888);  Mem- 
oirs of  John  Quincy  Adams,  VII,  14. 


130  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [130 

prestige  as  Commander-in-Chief.  It  is  a  power  that  was  feared 
greatly  at  the  beginning,71  and  it  is  a  power  that  needs  to  be 
exercised  with  due  caution  lest  political  expediency  rather  than 
military  fitness  become  the  criterion  for  selection.72  On  the 
whole,  it  can  be  said  that  the  President  has  in  his  exercise  of  this 
tremendous  power  generally  placed  the  winning  of  the  war  above 
any  thought  of  personal  or  political  advantage  to  himself. 

It  might  be  well  here  to  point  out  some  distinctions  between 
the  President's  control  over  the  army  and  navy,  and  his  control 
over  the  militia,  for  his  powers  of  command  with  regard  to  the 
latter  are  considerably  more  limited  than  those  with  respect  to 
the  former.  In  the  first  place,  the  President  is  not  at  all  times 
the  commander-in-chief  of  the  militia,  as  he  is  of  the  regular 
army  and  navy.  The  report  of  the  Committee  on  Detail  in  the 
Convention  of  1787  (on  August  6)  had  made  the  President  "com- 
mander-in-chief of  the  Army  and  Navy  of  the  United  States,  and 
of  the  militia  of  the  several  States, ' ' 73  thus  making  no  distinc- 
tion between  the  power  of  command  over  the  militia  and  that 
over  the  regular  forces,  but  giving  the  President  complete  com- 
mand of  both  at  all  times.  When  the  report  came  before  the 
Convention,  however  (on  August  27),  objection  was  immediately 
made  and  Mr.  Sherman 's  amendment  giving  'the  Executive  com- 
mand of  the  militia  only  "when  called  into  actual  service  of  the 
United  States"  was  adopted  with  but  two  dissenting  votes.74 
That  change  in  language  placed  a  very  definite  restriction  on  the 
power  of  the  President  to  command  the  militia  only  upon  the 
stated  occasions,  it  being  at  other  times  under  the  command  of  the 
executive  of  each  particular  state. 

71  See  Luther  Martin 's  letter  to  the  Maryland  legislature.  Elliot 's  De- 
lates, I,  379. 

72  For  an  interesting  insight  into  the  problem  that  sometimes  confronts 
the  President  in  this  connection,  see  Diary  of  James  K.  Polk,  I,  412-413. 
President  Wilson  has  been  accused   of  being  guided  chiefly  by  political 
considerations  in  declining  to  give  ex-President  Boosevelt  a  command  dur- 
ing the  recent  war,  and  in  refusing  to  assign  Gen.  Wood  to  overseas  duty. 

is  Madison's  Journal  (Hunt  ed.),  II,  86. 

74  Ibid.,  II,  255.  The  jealous  care  with  which  the  states  wished  to  pre- 
serve the  militia  as  distinctively  state  troops  under  the  command  of  state 
authorities  is  shown  further  by  the  various  amendments  proposed  in  the 
state  ratifying  conventions.  See  Elliot's  Debates,  I,  331,  335;  II,  545-546, 
552;  III,  660;  IV,  108,  245. 


131]  POWERS  OF  COMMAND  131 

In  the  second  place,  the  President  cannot  order  the  militia 
into  "the  actual  service  of  the  United  States"  and  thus  become 
its  commander-in-chief,  simply  upon  his  own  authority.  The 
Constitution  gives  the  President  no  authority  in  that  respect, 
but  vests  in  Congress  the  power  "to  provide  for  calling  forth 
the  militia. "  75  It  is  true  that  Congress  has  carried  out  this  con- 
stitutional provision  by  giving  the  President  in  turn  definite 
statutory  authority  to  call  out  the  militia  under  certain  circum- 
stances; nevertheless  it  also  remains  true  that  while  the  Presi- 
dent 's  power  to  command  the  army  and  navy  is  complete  and  ex- 
clusive, he  has  over  the  militia,  in  the  words  of  Hamilton,  "only 
the  occasional  command  of  such  part  as  by  legislative  provision 
may  be  called  into  the  actual  service  of  the  Union. ' ' 78 

Thirdly,  the  President  is  very  definitely  limited  in  the  pur- 
poses for  which  he  may  use  the  militia,  even  after  it  has  been 
lawfully  called  out  and  placed  under  his  command.  The  Consti- 
tution gives  Congress  the  right  to  provide  for  calling  forth  the 
militia  only  "to  execute  the  laws  of  the  Union,  to  suppress  in- 
surrections, and  to  repel  invasions, ' ' 77  and  of  course  Congress 
cannot  empower  the  President  to  use  the  militia  for  any  other 
purposes. 

The  President  has,  however,  been  granted  as  wide  powers  as 
this  constitutional  provision  will  permit.  By  the  Act  of  Septem- 
ber 29,  1789,  Congress  authorized  the  President  to  call  out  the 
militia  to  repel  Indian  invasions,78  and  the  Act  of  May  2,  1792, 
extended  that  authority  to  include  all  the  cases  mentioned  in  the 
Constitution.  This  act,  as  well  as  the  Act  of  February  28,  1795, 
broadened  the  power  of  the  President  still  further  by  authoriz- 
ing him  to  call  out  the  militia  not  only  in  case  of  actual  invasion, 
but  also  whenever  there  is  "imminent  danger  of  invasion  from 
any  foreign  nation  or  Indian  tribe, ' ' 79  thus  introducing  for  the 
first  time  the  element  of  discretion.  By  means  of  amendments 

75  Constitution,  Art.  I,  Sec.  8,  Cl.  15. 

wTlw  Federalist,  No.  68  (69)  (Goldwin  Smith  ed.,  p.  381).  See  also 
Johnson  v.  Sayre,  158  U.  S.,  109,  115  (1895).  Cf.  President  Fillmore's  dis- 
cussion of  the  distinction  between  the  President's  powers  in  this  respect 
in  his  message  of  Feb.  19,  1851.  Richardson,  op.  cit.,  V,  104. 

"  Constitution,  Art  I,  Sec.  8,  Cl.  15. 

78  Annals  of  Cong.,  1  Cong.,  II,  App.,  2199  (Sec.  5). 

" Ibid.,  2  Cong.,  App.,  1370  (Sec.  1);  3  Cong.,  App.,  1508  (Sec.  1). 


132  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [132 

and  supplementary  acts,  the  powers  of  the  President  in  this  re- 
spect have  been  still  further  broadened  and  amplified.80 

Several  important  constitutional  questions  as  to  the  power  of 
the  President  have  been  raised  under  the  provisions  of  these  acts. 
Thus,  when  President  Madison  called  out  the  militia  for  service 
in  the  War  of  1812,  the  question  immediately  arose  as  to  where 
the  power  rested  to  determine  when  the  emergency  contemplated 
by  the  Constitution  existed.  The  governors  of  three  states  (Mas- 
sachusetts, Connecticut,  and  Rhode  Island)  refused  to  respond  to 
the  call,  in  part  on  the  ground  that  it  was  within  the  power  of  the 
executive  of  each  state  to  determine  whether  the  need  for  militia 
was  so  great  as  to  warrant  its  being  called  out,  and  that  in  their 
opinion  no  such  emergency  existed  at  that  time.  In  this  opinion 
they  were  supported  by  the  Massachusetts  Supreme  Court  and 
the  Hartford  Convention.81  Secretary  of  War  Monroe,  however, 
dissented  vigorously  from  this  view  and  held  that  it  was  within 
the  discretion  of  the  President  alone  to  determine  the  existence 
of  a  constitutional  exigency  for  calling  out  the  militia.82  He  was 
supported  at  the  time  by  the  committee  of  Congress  chosen  to 
investigate  the  situation,83  and  later  by  the  Supreme  Court,84  and 
it  is  now  generally  recognized  that  the  President  has  exclusive- 
ly this  discretionary  authority. 

Another  much-disputed  question  concerns  the  extent  to  which 
the  President  may  use  the  militia  outside  the  limits  of  the  Uni- 
ted States.  In  the  War  of  1812,  in  the  Seminole  War  of  1818, 
and  in  the  Mexican  War  of  1846,  the  militia  was  ordered  out  and 
actually  used  across  the  border  of  the  United  States,85  the  action 

so  Acts  of  July  29,  1861;  Dick  Militia  Act  of  1903;  National  Defense 
Act  of  1916.  12  Stat.  at  L.,  281;  32  ibid.,  775,  776;  39  ibid.,  166,  201. 

si  McMaster,  History  of  the  People  of  the  United  States,  III,  544-546 ; 
IV,  251;  Am.  State  Papers,  Mil.  Affairs,  I,  605,  610-612;  8  Mass.,  548, 
549. 

82  Am.  State  Papers,  Mil.  Affairs,  I,  605-606. 

ss  See  its  report,  ibid.,  I,  604. 

a*  Martin  v.  Mott,  12  Wheat.,  19,  31-32  (1827);  Luther  v.  Borden,  7 
How.,  1,  43  (1848).  The  various  occasions  upon  which  the  militia  has  been 
called  into  the  federal  service  are  cited  by  Quincy  Wright  in  ' '  Military 
Administration, ' '  in  Beport  of  the  Efficiency  and  Economy  Committee, 
State  of  Illinois,  1915,  897-903. 

85  McMaster,  op.  cit.,  Ill,  438 ;  IV,  12-18 ;  Quincy  Wright,  op.  cit.,  898, 
899. 


133]  POWERS  OF  COMMAND  133 

in  every  case  being  based  on  the  authority  for  its  use  in  repelling 
invasions.  There  was  some  attempt  in  Congress  in  1812  to  give 
the  President  definite  statutory  authority  to  use  the  militia  forces 
outside  the  United  States,  but  after  a  debate  in  which  most  of 
the  members  seemed  to  think  such  use  unconstitutional,  the  mat- 
ter was  left  unsettled.86  In  the  Seminole  War  of  1818,  specific 
authority  was  given  to  use  the  troops  (consisting  largely  of  mil- 
itia) across  the  Florida  border  in  case  of  necessity,87  and  in 
the  Mexican  War  the  President  was  expressly  authorized  to  call 
out  militia  to  serve  during  the  war,  which  it  was  known  would 
be  waged  on  enemy  soil.88  Quite  recently  Congress  again  showed 
its  inclination  to  permit  the  use  of  militia  outside  the  limits  of 
the  United  States  when  in  the  amendment  of  1908  to  the  Dick 
Militia  Act  of  1903,  it  was  provided  that  when  called  out,  "the 
militia  shall  continue  to  serve  during  the  time  so  specified,  either 
within  or  without  the  territory  of  the  United  States  unless  sooner 
relieved  by  the  order  of  the  President. "  89  A  similar  provision 
was  included  in  the  Act  of  February  16,  1914,  with  regard  to 
the  naval  militia.90 

The  constitutionality  of  these  provisions  has  been  in  dispute. 
A  portion  of  the  militia  ordered  into  Canada  in  1812  refused,  on 
constitutional  grounds,  to  cross  the  border,  and  a  high  authority 
thinks  it  doubtful  whether  any  military  court  could  have  vindi- 
cated its  jurisdiction  had  it  attempted  to  punish  this  disobedi- 
ence.91 A  portion  did  cross,  however,  and  the  precedents  of  the 
wars  of  1812,  1818,  and  1846,  would  seem  to  be  authority  for  the 
view  that  militia  may  be  used  outside  the  United  States  if  neces- 
sary to  repel  invasion.  Attorney-General  Wickersham  took  that 

SB  Annals  of  Cong.,  12  Cong.,  I,  728-802;  Elliot's  Debates,  IV,  459-460; 
McMaster,  op.  cit.,  Ill,  438. 

87  See  message  of  President  Monroe,  Mar.  25,  1818.  Am.  State  Papers, 
Mil.  Affairs,  I,  681;  letter  of  Sec.  of  War  Calhoun  to  Gen.  Gaines,  Dec.  16, 
1817.  Ibid.,  689. 

ssQuincy  Wright,  op.  cit.,  899;  cf.  Upton,  Military  Policy  of  the  United 
States,  196-197;  Act  of  May  13,  1846.  9  Stat.  at  L.,  9  (Sees.  1,  2). 

8»35  Stat.  at  L.,  399,  400  (See  Sec.  3). 

9038  ibid-.,  283,  284  (Sec.  4). 

9i  Ordronaux,  Constitutional  Legislation  in  the  United  States,  504.  Mc- 
Master seems  to  think  the  refusal  of  the  militia  to  cross  was  due  to 
cowardice  rather  than  to  any  constitutional  scruples.  History  of  the  People 
of  the  United  States,  IV,  12. 


134  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [134 

view  in  an  opinion  rendered  in  1912:  "If  the  militia  were 
called  into  the  service  of  the  General  government  to  repel  an  in- 
vasion, it  would  not  be  necessary  to  discontinue  their  use  at  the 
boundary  line,  but  they  might  (within  certain  limits,  at  least) 
pursue  and  capture  the  invading  force,  even  beyond  that  line, 
and  just  as  the  Regular  Army  might  be  used  for  that  pur- 
pose. ' ' 92  Pomeroy,  however,  holds  that  ' '  in  no  case  can  they  be 
compelled  to  serve  without  the  territory  of  the  Union.  The  laws 
must  be  executed  where  they  have  force,  and  that  is  only  within 
the  country  itself.  Insurrections  and  invasions  must  be  internal. 
We  do  not  repel  an  invasion  by  attacking  the  invading  nation 
upon  its  own  soil. ' '  The  furthest  he  is  willing  to  go  is  to  admit 
that  the  militia  may  be  called  out  before  the  invaders  have  set 
foot  upon  our  territory.  "It  is  a  fair  construction  of  language 
to  say  that  one  means  of  '  repelling '  an  invasion  is  to  have  a  force 
ready  to  receive  the  threatened  intruders  when  they  arrive. ' ' 93 
While  there  may  thus  be  some  doubt  as  to  whether,  or  to  what 
extent,  the  militia  may  be  used  outside  the  United  States  in 
repelling  invasions,  practically  all  authorities  seem  to  agree 
that  it  cannot  be  used,  as  militia,  for  the  purpose  of  invading  a 
foreign  country  or  carrying  on  an  offensive  war  outside  the  juris- 
diction of  the  United  States.  Thus  Attorney-General  Wicker- 
sham,  in  the  same  opinion  in  which  he  held  that  militia  might  be 
taken  across  the  border  to  repel  an  invasion,  held  the  act  of  1908 
unconstitutional  in  so  far  as  it  authorized  the  use  of  the  militia, 
as  such,  for  the  purposes  of  warfare  in  foreign  countries.94  Judge 
Advocate  General  Davis  in  1908  had  rendered  an  opinion  to  the 
contrary,  arguing  that  a  declaration  of  war  is  a  law  for  the  ex- 
ecution of  which  the  militia  may  be  called  out  and  sent  wherever 
necessary  to  carry  out  its  purposes ; 95  but  the  weight  of  authority 
is  in  support  of  the  view  that  the  militia  cannot  as  such  be  sent 
out  of  the  United  States  for  the  purposes  of  a  foreign  war.96 

92  29  Op.  Atty.  Gen.,  322,  324. 

»3  Pomeroy,  Constitutional  Law  (Bennett's  ed.),  387. 

9*  29  Op.  Atty.  Gen.,  329. 

95  See  Cong.  Eecord,  XLII  (60  Cong.,  1  Sess.),  6943;  cf.  opinion  of 
Asst.  Atty.  Gen.  Boyd  on  the  position  of  the  militia  in  the  Spanish  War.  22 
Op.  Atty.  Gen.,  225,  227-228;  536,  540. 

90  Pomeroy,  Constitutional  Law,  387;  Von  Hoist,  Constitutional  Law, 
170;  Ordronaux,  Constitutional  Legislation,  501-502;  Dig.  Ops.  J.  A.  G. 
(ed.  1901),  483. 


135]  POWERS  OP  COMMAND  135 

Finally,  with  regard  to  the  appointment  of  officers  for  the  com- 
mand of  the  militia,  the  powers  of  the  President  are  very  much 
limited.  The  Constitution  definitely  reserves  to  the  states  the 
appointment  of  such  officers,97  but  the  Constitution  is  not  clear 
as  to  what  authority  may  appoint  the  commanding  officers  when 
several  different  militia  units,  or  militia  from  several  different 
states,  are  called  into  the  service  of  the  United  States. 

There  is  no  doubt  that  the  President  himself  may  take  personal 
command  on  such  occasions,  since  he  is  made  commander-in-chief 
of  the  militia  "when  called  into  the  service  of  the  United 
States,"  as  he  is  of  the  regular  army  and  navy  at  all  times. 
President  Washington  was  not  only  clear  as  to  his  right  to  take 
personal  command  of  the  militia  forces  upon  such  occasions,  but, 
in  the  case  of  the  Whiskey  Rebellion  in  1794,  was  also  convinced 
of  the  necessity  of  exercising  that  right.  He  assumed  active  com- 
mand of  the  militia  forces  assembled  to  crush  the  insurrection, 
visited  the  place  of  rendezvous,  and  personally  directed  the  for- 
ward movement  of  the  troops,  living  and  marching  with  them  as 
active  commander  in  the  field  from  September  25  to  October  20, 
when,  as  he  informed  Congress  in  his  message  of  November  20, 
' '  if  the  state  of  things  had  afforded  reason  for  the  continuance  of 
my  presence  with  the  army,  it  would  not  have  been  withholden. 
But  every  appearance  assuring  such  an  issue  as  will  redound  to 
the  reputation  and  strength  of  the  United  States,  I  have  judged 
it  most  proper  to  resume  my  duties  at  the  seat  of  Government, 
leaving  the  chief  command  with  the  Governor  of  Virginia  (Ma- 
jor-General  Henry  Lee)."98  There  was  apparently  some  criti- 
cism of  Washington's  course  at  the  time  as  being  unconstitu- 
tional, which  the  President  denounced  as  ' '  impertinence, ' '  "  al- 
tho  he  was  careful  to  say  that  "imperious  circumstance  alone" 
could  justify  his  absence  from  the  seat  of  government  while  Con- 
gress was  in  session.100 

Washington's  action  in  this  case  was  not  of  course  a  case  of 

87  Art.  I,  Sec.  8,  Cl.  16. 

»*Am.  State  Papers,  Misc.,  I,  84;  See  also  letters  of  Washington  to 
Maj.  Gen.  Daniel  Morgan,  Oct.  8,  1794,  and  to  Maj.  Gen.  Lee,  Oct.  20, 
1794.  Writings  of  George  Washington,  XII,  469-470,  479-480;  cf.  Oliver, 
Alexander  Hamilton,  346-347. 

99  Writings  of  George  Washington,  XII,  474. 

100  Ibid.,  469. 


136  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [136 

exercising  personal  command  in  time  of  actual  war,  but  of  domes- 
tic trouble.  Nevertheless  it  is  significant  as  showing  that  Wash- 
ington did  not  hesitate  to  leave  his  civil  duties  to  take  active 
command  of  troops  in  the  field,  even  when  Congress  was  in  ses- 
sion, and  it  is  not  at  all  unlikely  that  he  would  have  done  the 
same  in  case  of  more  serious  difficulties  with  foreign  powers. 

As  a  matter  of  fact,  it  was  seriously  asserted  during  the  War 
of  1812,  that  when  the  militia  was  called  into  the  service  of  the 
United  States,  the  President  could  not  delegate  his  right  of  com- 
mand to  any  officer  —  in  other  words,  that  he  could  under  no 
circumstances  appoint  any  other  officer  to  command  militia 
forces  — ;  but  that  whenever  different  detachments  of  militia 
were  called  out,  or  militia  from  different  states,  the  President 
was  under  the  obligation  of  assuming  personal  command.  This 
was  the  contention  of  the  governors  of^the  three  states  refusing 
to  furnish  militia,  when,  in  reply  to  President  Madison's  call 
upon  the  militia  for  service  during  that  war,  they  gave  as  one 
reason  for  objecting  to  letting  the  militia  out  from  their  juris- 
diction, "That  when  the  militia  of  a  State  should  be  called  into 
the  service  of  the  United  States,  no  officer  of  the  regular  army 
had  a  right  to  command  them,  or  other  person,  not  an  officer  of 
the  militia,  except  the  President  of  the  United  States  in 
person."101 

This  view  of  the  governors  was  sustained  at  the  time  by  the 
Massachusetts  Supreme  Court,102  but  was  later  vigorously  con- 
demned by  Secretary  of  War  Monroe,  in  an  opinion  given  to  a 
committee  of  Congress,  February  11,  1815,  in  which  he  said  that 
such  a  construction  was  one  ' '  for  which  I  can  see  nothing  in  the 
Constitution  to  afford  the  slightest  pretext."  He  maintained 
that  the  President  was  under  no  greater  obligation  to  command 
the  militia  in  person  than  the  regular  troops;  that  the  power  to 
command  both  was  vested  in  him  principally  for  the  purpose  of 
giving  him  that  control  over  military  and  naval  operations  which 
is  a  necessary  attribute  of  the  executive  branch  of  the  govern- 
ment; that  his  actual  presence  with  the  troops,  either  militia  or 
regular  forces,  was  under  no  circumstances  necessarily  contem- 

101  Am.  State  Papers,  Mil.  Affairs,  I,  605,  610-611. 

102  Hid.,  611-612 ;    8  Mass.,  548,  550.     Cf.  also  debate  in  Congress,  Apr. 
17,  1812.     Annals  of  Cong.,  12  Cong.,  1  Sess.,  II,  1324. 


137]  POWERS  OF  COMMAND  137 

plated  by  the  Constitution;  that  "in  construction  of  law  he  is 
commander-in-chief,  though  not  present."  103 

Monro&'s  position  with  regard  to  the  meaning  of  the  Constitu- 
tion was  eminently  sound.  It  can  hardly  be  imagined  that  the 
framers  of  the  Constitution  intended  anything  else  than  that  the 
President  should  be  the  judge  as  to  the  wisdom  and  necessity  of 
his  personal  presence  with  the  troops ;  still  less  can  it  be  imagin- 
ed that  any  distinction  was  intended  between  the  President's  ob- 
ligations in  that  respect  toward  the  militia  and  the  regular 
forces.  The  general  practise  on  all  occasions  upon  which  the 
militia  has  been  called  out,  as  well  as  authoritative  opinion,  would 
therefore  indicate  that  when  the  militia  has  been  called  into  the 
service  of  the  United  States,  it  comes  under  the  control  of  the 
President  as  Commander-in-Chief,  and  may  be  commanded  by 
him  personally  or  by  any  officer  designated  by  him,  whether  of 
the  regular  or  militia  forces.104 


.  State  Papers,  Mil  Affairs,  I,  606. 
104  Ordronaux,  Constitutional  Legislation  in  the  United  States,  505;  2  Op. 
Atty.  Gen.,  711;  Story,  Commentaries,  II,  316  n;  Am.  State  Papers,  Mil. 
Affairs,  II,  102. 


CHAPTER  VIII 

POWERS  OF  MILITARY  JURISDICTION 

For  the  exercise  of  military  jurisdiction,  two  principal  mili- 
tary tribunals  have  come  into  being  —  courts-martial,  for  the 
trial  of  offenders  against  military  law,  and  military  commissions, 
for  the  trial  of  offenders  against  the  laws  of  war  and  under  mar- 
tial law.1  The  authority  of  the  former  is  conferred  and  defined 
largely  by  statute,  under  the  power  given  to  Congress  "to  make 
rules  for  the  government  and  regulation  of  the  land  and  naval 
forces ; "  2  while  the  authority  of  the  latter  is  derived  principally 
from  the  common  law  of  war.3 

Altho  the  authorization  of  courts-martial  is  thus  in  the  hands 
of  Congress,  their  control  afterwards  rests  almost  exclusively 
with  the  executive  branch  of  the  government.  They  are  created, 
in  every  case,  by  military  order  issued  by  commanding  officers 
having  authority  under  the  Articles  of  War  to  call  them  into 
being.4  "They  are  creatures  of  orders,  the  power  to  convene 
them,  as  well  as  the  power  to  act  upon  their  proceedings,  being 
an  attribute  of  command. ' ' 5 

1  For  the  distinction  between  military  law  and  martial  law,  see  Manual 
for  Courts-Martial,  U.  S.  Army  (ed.  1917), 1-2;  Davis,  Treatise  on  the  Mili- 
tary Law  of  the  United  States  (2nd  ed.),  5;  Birkhimer,  Military  Govern- 
ment and  Martial  Law   (2nd  ed.),  371-391.     See  also  an  excellent  tabular 
statement  in  Davis,  op.  tit.,  12. 

2  Constitution,  Art.  I,  Sec.  8,  Cl.  14.     The  rules  enacted  by  Congress  un- 
der this  provision  are  for  the  most  part  included  in  what  are  called  the 
Articles  of  War.    The  latest  revision  of  these  may  conveniently  be  found  in 
Manual  for  Courts-Martial,  305-329  (App.  I) ;  also  a  concise  history  of  the 
Articles  in  the  same  Manual,  ix-xiii. 

3  See  Lieber  's  Instructions  for  the  Government  of  Armies  of  the  United 
States  in  Time  of  War,  G.  O.  100,  A.  G.  O.,  1863,  in  Birkhimer,  op.  cit., 
635. 

*  Davis,  Treatise  on  Military  Law,  16. 
s  Dig.  Ops.  J.  A.  G.,  (ed.  1901),  283. 

138 


139]  POWERS  OF  MILITARY  JURISDICTION  139 

The  President  is  expressly  authorized  by  statute  to  convene 
general  courts-martial  under  certain  circumstances.6  He  is  by 
no  means,  however,  limited  to  that  specific  case,  nor  dependent 
upon  statutory  authority,  but  is  empowered  to  convene  such 
courts-martial ' '  generally  and  in  any  case, ' '  by  virtue  of  his  con- 
stitutional authority  as  Commander-in-Chief.7  In  an  opinion 
rendered  June  6, 1877,  Attorney  General  Devens,  after  reviewing 
the  law  and  precedents  on  this  subject,  said :  '  *  The  authority  of 
the  President  to  appoint  general  courts-martial,  in  cases  wherein 
he  is  not  expressly  authorized  so  to  do  by  Congress,  may  there- 
fore be  regarded  as  well  established.  It  rests  directly  upon  the 
provision  of  the  constitution  which  makes  him  Commander-in- 
Chief,  as  interpreted  by  the  law  and  usage  of  the  military  service 
existing  when  that  instrument  was  framed ;  it  is  sustained  by  the 
doctrine  laid  down  in  American  works  of  authority  on  courts- 
martial,  the  views  expressed  by  one  of  the  standing  committees 
of  the  House  (that  on  Military  Affairs)  whose  special  business  it 
is  to  make  itself  conversant  with  subjects  of  this  character,  and 
an  official  opinion  of  the  late  distinguished  head  of  the  Bureau 
of  Military  Justice,  Judge  Holt;  and,  moreover,  it  is  confirmed 
by  long-continued  practice,  extending  back  nearly  to  the  begin- 
ning of  the  Government. ' ' 8 

That  power  of  the  President  has  further  been  supported  by 
the  Judiciary  Committee  of  the  Senate ; 9  and  it  has  been  exer- 
cised on  numerous  occasions,  both  before  and  after  the  passage 
of  the  statute  in  question,  notably  in  the  cases  of  Brigadier  Gen- 
eral Hull  (1813),  Major  General  Wilkinson  (1814),  Major  Gen- 
eral Gaines  (1816),  Major  General  Twiggs  (1858),  Brigadier 
General  Paine  (1865),  and  many  others.10  The  power  so  exer- 
cised is  "a  striking  illustration,"  as  was  said  by  one  authority, 
"  of  an  undefined  constitutional  power,  for  it  is  nothing  less  than 
the  power  to  constitute  tribunals  with  judicial  jurisdiction  ex- 
tending even  to  trials  for  capital  offenses."  lx 

e  Act  of  May  29,  1830.  4  Stat.  at  L.,  417. 

7  Swaim  v.  United  States,  165  U.  S.,  553,  558  (1897) ;  Dig.  Ops.  J.  A,  G., 
568;  Davis,  op.  cit.,  17. 

s  15  Op.  Atty.  Gen.,  302-303.  See  also  ibid.,  297-301. 

»  Report  No.  868,  Mar.  3,  1879,  45  Cong.,  3  Sess.,  cited  in  Davis,  op.  cit., 
17,  n. 

10  See  list  of  courts-martial  convened  by  order  of  the  President  in  15 
Op.  Atty.  Gen.,  301-302. 

n  Lieber,  Remarks  on  Army  Eegulations,  25. 


140  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [140 

The  fact  that  military  commanders  subordinate  to  the  Presi- 
dent may  also  upon  occasion  convene  courts-martial,  can  in  no 
sense  be  understood  as  a  limitation  upon  the  President's  consti- 
tutional power  to  summon  these  courts  at  his  discretion.  "A 
military  officer  cannot  be  invested  with  greater  authority  by  Con- 
gress than  the  commander-in-chief,  and  a  power  of  command 
devolved,  by  statute,  on  an  officer  of  the  Army  or  Navy  is  neces- 
sarily shared  by  the  President.  .  .  Since  the  earliest  legisla- 
tion of  our  Government  it  has  undoubtedly  been  understood  and 
intended  that  whatever  powers  were  granted  to  general  officers 
were,  at  the  same  time,  granted  and  intended  to  be  shared  by  the 
President  .  .  .  whose  name  is  understood  as  written  in 
in  every  statute  which  confers  upon  a  military  officer  military 
authority."12 

The  President  may,  however,  act  through  his  subordinates. 
Thus,  a  convening  of  a  general  court-martial  by  the  Secretary  of 
War  is  held  to  be  in  law  a  convening  by  the  President,  and  as 
legal  as  if  the  President  himself  had  signed  the  order,  such  act  of 
the  Secretary  being  purely  administrative  and  in  law  the  act  of 
the  President  whom  he  represents.13 

The  constitution  of  general  courts-martials  is  also  subject  to 
the  control  of  the  Executive.  The  appointing  authority, 
whether  it  be  the  President  or  a  subordinate  commanding  offi- 
cer, designates  the  number  of  officers,  between  the  statutory 
maximum  (13)  and  minimum  (5),  that  are  to  constitute  any 
particular  court  in  any  case,  and  his  decision  is  final.14  Even 
during  a  trial  members  of  a  court  may  be  relieved  from  duty 
with  the  court  and  ordered  to  other  service,  or  new  members 
may  be  added,  without  affecting  the  functioning  of  the  court  or 
the  validity  of  its  proceedings,  provided  merely  that  the  mem- 
bership is  not  reduced  below  the  minimum  nor  increased  beyond 
the  maximum.15  Even  the  reduction  of  a  court  below  the  mini- 
mum does  not  dissolve  it,  its  sittings  being  merely  interrupted 
until  sufficient  new  members  are  added,  and  the  validity  of  its 
proceedings  being  unaffected.  "Thus  the  membership  of  the 

12  Davis,  op.  cit.,  17,  n;  cf.  8th  Article  of  War,  in  Manual  for  Courts- 
Martial,  309-310. 

i3l%.  Ops.  J.  A.  G.,  290,  568,  644-645. 

14 Martin  v.  Mott,  12  Wheat,,  19,  34-35  (1827). 

is  Of  course  there  are  certain  rules  requiring  the  reading  of  the  previous 
record  to  the  new  members,  etc.,  but  there  is  in  no  sense  a  retrial. 


141]  POWERS  OF   MILITARY  JURISDICTION  141 

court,  both  as  to  numbers  within  statutory  limits  and  as  to  per- 
sonnel, is  entirely  within  the  control  of  the  appointing  or 
superior  military  authority  at  all  times. ' ' 1G 

The  President  also  has  entire  control  over  the  methods  and 
procedure  of  courts-martial.17  The  procedure  for  preferring 
charges  and  bringing  the  accused  to  trial  is  prescribed  almost 
exclusively  by  regulations  and  the  customs  of  the  service,  while 
the  rules  of  evidence  are  those  of  the  federal  courts  as  modified 
by  executive  regulations. 

Likewise,  the  President  may  to  a  large  extent  control  the  find- 
ings and  sentence  of  courts-martial.  The  Articles  of  War  ex- 
pressly provide  that  the  approval  of  the  appointing  officer  or  of 
his  successor  in  command  is  a  condition  precedent  to  the  execu- 
tion of  any  sentence,  and  that  the  appointing  authority  may  ap- 
prove or  disapprove  the  finding,  or  approve  or  disapprove  the 
whole  or  any  part  of  the  sentence.18  The  President  acts  as  the 
reviewing  authority  in  all  cases  tried  by  courts-martial  convened 
by  himself,  either  under  his  general  authority  as  Commander- 
in-Chief,  or  as  expressly  provided  by  statute,  in  cases  of  sen- 
tences respecting  general  officers,  in  cases  of  sentences  of  death 
or  dismissal  adjudged  in  time  of  peace,  and  in  all  cases  submit- 
ted to  him  for  action  in  time  of  war.  He  may  approve  or  dis- 
approve in  whole  or  in  part  the  findings  or  the  sentence,  or  he 
may  mitigate  the  punishment.19 

Also,  by  custom  of  the  service,  the  President  or  other  appoint- 
ing authority  may  return  the  record  in  any  case  for  reconsidera- 
tion and  revision,  whether  the  finding  is  guilty  or  not  guilty. 
A  rule  of  procedure  prescribed  by  President  Wilson,  effective 
August  10,  1919,  modified  this  in  so  far  as  it  abolished  the  power 
to  return  a  finding  of  acquittal  for  reconsideration  or  any  sen- 
tence for  revision  upward,20  but  of  course  another  President  or 

ie  E.  M.  Morgan,  in  Tale  Law  Jour.,  XXIX,  60-61. 

"  See  38th  Article  of  War,  in  Manual  for  Courts-Martial,  314. 

is  46th  and  47th  Articles  of  War.     Ibid.,  315-316. 

19  Dig.  Ops.  J.  A.  G.,  568-569.     But  when  such  approval  or  disapproval 
has  once  been  given  and  the  accused  duly  notified,  it  is  beyond  the  power 
of  the  President  to  change  his  decision,  even  though  his  action  may  after- 
warda  be  found  to  have  worked  an  injustice.     15  Op.  Atty.  Gen.,  290,  297. 
Of  course  the  President  may  still  pardon  the  accused,  if  punishment  is 
unexecuted. 

20  G.  O.   88,  W.  D.,  sec.  1,  July  14,   1919,  quoted  in   Tale  Law  Jour. 
XXIX,  63,  n. 


142  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [142 

President  Wilson  himself  might  revoke  this  order  and  thus  re- 
store the  former  practise.  While  the  Executive  has  thus  almost 
complete  control  over  the  findings  and  sentences  of  courts-mar- 
tial, Congress  has  no  power  whatever  either  to  revise  or  reverse 
their  judgments.21 

As  in  the  case  of  the  convening  of  courts-martial,  so  the  action 
of  the  President  respecting  their  procedure,  findings,  and  sen- 
tence, while  it  should  be  the  result  of  his  own  judgment,22  need 
not  be  under  his  own  hand,23  any  action  of  authorized  subordi- 
nates, such  as  the  Secretary  of  War  and  the  Secretary  of  the 
Navy,  being  presumed  in  law  to  be  the  act  of  the  President.24 
But  confirmation  of  findings  and  sentence  by  some  Executive 
authority  being  required  in  all  cases  before  execution  of  sentence, 
courts-martial  can  hardly  be  considered  as  anything  but  advisory 
bodies,  with  the  power  of  making  recommendations  or  of  report- 
ing findings  of  fact  and  conclusions  of  law  to  a  non-judicial 
superior,  whose  principal  function  is  that  of  an  executive.25 
"The  system  then  is  clearly  one  of  review  by  superior  military 
authority,  which  may,  but  need  not,  ask  or  follow  the  opinion  of 
legal  advisers,  and  is  in  no  respect  judicial.  .  .  The  principle 
at  the  foundation  of  the  existing  system  is  the  supremacy  of 
military  command.  To  maintain  that  principle,  military  com- 
mand dominates  and  controls  the  proceeding  from  its  initiation 
to  the  final  execution  of  the  sentence. ' ' 26 

Courts-martial  differ  widely,  therefore,  from  civil  courts.  The 
latter  are  created  by  statute,  which  also  describe  their  composi- 
tion, define  their  jurisdiction  and  procedure,  and  determine  the 
times  and  places  of  their  sessions.  Courts-martial,  tho  au- 
thorized by  statute,  are  created  and  dissolved  in  every  case  by 
executive  authority ;  the  Executive  likewise  determines  their  com- 
position, defines  their  procedure,  and  controls  their  findings  and 

21  Am.  State  Papers,  Mil.  Affairs,  V,  17-18. 
22EunTcle  v.  United  States,  122  U.  8.,  543,  557  (1887). 
23United  States  v.  Fletcher,  148  U.  8.,  84,  88-89  (1893). 
z*  Ibid.,  91;  United  States  v.  Page,  137  U.  8.,  673,  679-680  (1891) ;  Bish- 
op v.  United  States,  197  U.  8.,  334,  341-342  (1905). 

25  Glenn,  The  Army  and  the  Law,  35-42. 

26  E.  M.  Morgan,  op.  cit.,  65,  66.     The  opinion  of  the  Judge  Advocate 
General  is  in  some  cases  required  before  execution  of  sentence,  but  only 
by  General  Order.     His  advice  is  generally  followed  by  the  reviewing  au- 
thority, but  not  necessarily,  and  it  has  been  disregarded. 


143]  POWERS  OF  MILITARY  JURISDICTION  143 

sentences.  It  therefore  seems  correct  to  say,  as  do  most  authori- 
ties, that  courts-martial  are  no  part  of  the  judiciary  of  the  United 
States,  but  simply  agencies  or  instrumentalities  of  the 
Executive.27 

Military  commissions  as  contrasted  with  courts-martial,  are  of 
comparatively  recent  origin  in  the  United  States,  having  been 
initiated  by  General  Scott  in  Mexico  in  1847.28  Courts-martial, 
as  has  already  been  noted,  are  instituted  for  the  trial  of  offend- 
ers against  military  law,  that  is,  their  jurisdiction  is  restricted 
by  statute  to  military  persons  and  to  certain  specific  offences 
defined  by  law.  Hence  other  tribunals  have  been  found  neces- 
sary for  the  trial  of  civilians  as  well  as  military  persons,  who  are 
accused  of  criminal  acts  contrary  to  the  common  laws  of  war  and 
under  martial  law,  and  for  this  purpose  the  military  commissions 
have  been  established.  Thus  the  military  commission  initiated 
by  General  Scott  was  mainly  for  the  punishment  of  murder,  rob- 
bery, and  other  violent  crimes,  committed  either  by  civilians  or 
military  persons,  and  not  at  that  time  cognizable  by  a  court- 
martial.  At  the  same  time  another  tribunal,  called  the  ' '  council 
of  war,"  was  inaugurated  for  the  punishment  of  offenses  pecu- 

2T  Davis,  op.  cit.,  15;  Dig.  Ops.  J.  A.  G.,  283;  Willoughby,  Constitutional 
Law,  II,  1197.  S.  T.  Ansell,  recently  Acting  Judge  Advocate  General, 
admits  this  conclusion,  but  criticizes  severely  the  system  that  makes  such 
a  conclusion  necessary.  See  his  article,  "Military  Justice,"  in  Cornell 
Law  Quar.,  V,  11-17  (Nov.  1919),  esp.  5-7.  But  compare  the  Supreme 
Court  opinion  approving  the  following  statement  by  Attorney  General 
Bates:  "  The  whole  proceeding  from  its  inception  is  judicial.  The  trial, 
findings,  and  sentence  are  the  solemn  acts  of  a  court  organized  and  con- 
ducted according  to  the  prescribed  forms  of  law.  It  sits  to  pass  upon 
the  most  sacred  questions  of  human  rights  that  are  ever  placed  on  trial 
in  a  court  of  justice;  rights  which,  in  the  very  nature  of  things,  can  never 
be  exposed  to  danger  nor  subjected  to  the  uncontrolled  will  of  any  man,  but 
which  must  be  adjudged  according  to  law."  Bunkle  v.  United  States,  122 
U.  S.,  543,  558  (1887).  For  an  excellent  review  and  criticism  of  the  present 
court-martial  system,  see  an  article,  already  occasionally  referred  to,  by 
E.  M.  Morgan,  "The  Existing  Court-Martial  System  and  the  Ansell  Ar- 
ticles," Yale  Law  Jour.,  XXIX,  52-74  (Nov.,  1919).  For  a  defense  of  the 
present  system,  see  an  article  by  G.  G.  Bogert,  professor  of  law  in  Cornell 
University  and  recently  Judge  Advocate  of  the  78th  Division,  "Courts- 
Martial:  Criticisms  and  Proposed  Reforms,"  in  Cornell  Law  Quar.,  V,  18- 
47  (Nov.,  1919). 

28  See  Gen.  Scott's  G.  O.  No.  287,  Sept.  17,  1847,  in  Birkhimer,  op.  cit., 
581-583  (Appendix  I,  Par.  10,  11.). 


144  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [144 

liar  to  war,  and  especially  crimes  by  members  of  guerilla  bands. 
Early  in  the  Civil  War  these  two  tribunals  were,  by  practise  of 
the  military  commanders  and  sanctioned  by  the  War  Depart- 
ment, united  into  the  one  court  called  the  "military  com- 
mission. ' ' 29 

The  authority  for  the  creation  of  military  commissions  may 
therefore  be  said  to  be  the  same  as  that  for  the  prosecution  of 
war  and  for  the  exercise  of  military  government  and  martial 
law  —  they  are  "merely  an  instrumentality  for  the  more  effi- 
cient execution  of  the  laws  of  war, ' ' 30  and  as  such  are  but  an- 
other agency  of  the  Executive.  Tho  derived  from  the  common 
law  of  war,  the  authority  of  military  commissions  has  been  rec- 
ognized in  statutes,31  in  executive  proclamations,32  in  opinions 
of  Attorneys-General,33  and  in  rulings  of  the  Supreme  Court,34 
so  that  it  is  now  "as  well  known  and  recognized  in  the  laws  of 
the  United  States  as  a  court-martial. ' ' 35 

The  President  has  practically  complete  control  over  the  mili- 
tary commissions.  There  is  no  statute  prescribing  how  or  by 
whom  they  are  to  be  constituted,  or  how  they  are  to  be  composed. 
In  practise,  however,  they  have  been  created  by  the  same  authori- 
ties as  are  empowered  to  order  courts-martial,  which  means  the 
President  himself  at  his  discretion  or  his  military  commanders 
acting  under  his  authority.  Attorney-General  Speed  in  1865 
upheld  the  right  of  the  President  to  create  such  military  tribun- 
als even  for  the  trial  of  non-military  persons  —  in  this  case  the 
assassins  of  President  Lincoln:  "I  do  not  think,"  he  said, 
"that  Congress  can,  in  time  of  war  or  peace.  .  .  create  mili- 
tary tribunals  for  the  adjudication  of  offences  committed  by 
persons  not  engaged  in,  or  belonging  to,  such  forces.  .  .  But 
it  does  not  follow  that  because  such  military  tribunals  cannot  be 

29Winthrop,  Abridgment  of  Military  Law  (2nd  ed.),  331-332. 

so  Ibid.,  331. 

si  Acts  of  Mar.  3,  1863  (sec.  30) ;  July  2,  1864  (see.  1) ;  July  4,  1864 
(sees.  6,  8) ;  Mar.  2,  1867  (sec.  3);  and  several  later  appropriation  acts. 

32  Proclamations  of  Sept.  24,  1862  and  Apr.  2,  1866.  Kichardson,  Mes- 
sages and  Papers  of  tlie  Presidents,  VI,  98-99,  429-432. 

335  Op.  Atty.  Gen.,  55;  11  ibid.,  297;  12  ibid.,  332;  13  ibid.,  59;  14 
ibid.,  249. 

**Ex  parte  VallandigJiam,  1  Wall.,  243  (1863);  Ex  parte  Milligan,  4 
Wall.,  2  (1866). 

35  Davis,  Treatise  on  Military  Law,  308,  n. 


145]  POWERS  OF   MILITARY  JURISDICTION  145 

created  by  Congress,  .  .  that  they  cannot  be  created  at  all. ' ' 
The  Attorney-General  held  that  under  the  laws  of  war,  which 
constitute  the  greater  part  of  the  law  of  nations  and  therefore 
are  a  part  of  the  law  of  the  land,  military  commanders  are  au- 
thorized to  create  and  establish  military  commissions  or  other 
tribunals  for  the  trial  of  offenders  against  the  laws  of  war, 
whether  these  offenders  are  active  or  secret  participants,  that 
"obedience  to  the  Constitution  requires  that  the  military  should 
do  their  whole  duty ;  they  must  not  only  meet  and  fight  the  ene- 
mies of  the  country,  in  open  battle,  but  they  must  kill  or  take  the 
secret  enemies  of  the  country,  and  try  and  execute  them  accord- 
ing to  the  laws  of  war. ' ' 3e 

The  composition  of  military  commissions  is  entirely  within  the 
authority  of  the  President  to  determine.  There  being  no  statu- 
tory maximum  or  minimum  as  to  the  number  of  members,  as  in 
the  case  of  courts-martial,  the  discretion  of  the  President  is  even 
wider  than  for  those  tribunals.  Military  commissions  have,  how- 
ever, usually  been  composed  of  five  members;  less  than  three 
would  be  contrary  to  precedent;  but  any  number  would  be 
legal.37 

The  jurisdiction  of  military  commissions  is  not  defined  by 
statute,  but  extends  in  practise  to  violations  of  the  laws  of  war, 
whether  by  civilians  or  military  persons,  in  occupied  enemy  ter- 
ritory or  in  territory  under  martial  law.38  The  power  of  the 
President  to  institute  military  government  over  occupied  terri- 
tory is  exclusive,89  and  in  that  respect  he  controls  the  jurisdic- 
tion of  military  commissions.  The  power  to  institute  martial 
law,  while  more  doubtful,  is  generally  held  to  belong  properly,  in 
time  of  war,  to  the  Executive,  as  Commander-in-Chief.  "The 
power  of  the  Executive  to  prosecute  a  war  precipitated  upon  the 
country  carries  with  it  by  necessary  implication,"  says  one  au- 
thority, "the  incidental  power  to  make  use  of  the  necessary  and 
customary  means  of  carrying  it  on  successfully.  If  he  deems  the 

as  11  Op.  Atty.  Gen.,  297,  298,  299,  308,  316. 

37  Winthrop,  op.  cit.,  333;  Dig.  Ops.  J.  A.  G.,  463.  The  military  commis- 
sion convened  by  order  of  President  Johnson  for  the  trial  of  Lincoln's 
assassins  was  composed  of  9  members.  See  Special  Orders  No.  211  and  216, 
May  6  and  May  9,  1865,  in  Eichardson,  op.  cit.,  VI,  335-336,  336-337. 

ss  Winthrop,  op.  cit.,  333;  Dig.  Ops.  J.  A.  G.,  464. 

39  Infra,  Ch.  IX. 


146  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [146 

placing  any  district  under  martial  law  a  proper  measure,  it  is 
difficult  logically  to  deny  him  the  right  to  do  it. " 40  In  practise, 
martial  law  is  always  instituted  by  Executive  authority,41  and 
hence  military  commissions  are  dependent  upon  the  action  of  the 
President  for  their  jurisdiction  in  that  respect  also.  The  viola- 
tions of  the  laws  of  war  that  come  under  the  jurisdiction  of  the 
military  commissions  in  these  cases  have  been  held  to  include  all 
cases  which  do  not  come  within  the  jurisdiction  conferred  by 
statute  on  courts-martial,42  and  in  practise  have  included  almost 
every  conceivable  offense,  from  the  slightest  sort  of  intercourse 
with  the  enemy  to  espionage  and  murder.43 

In  addition  to  the  jurisdiction  conferred  under  the  common 
law  of  war  and  martial  law,  military  commissions  may  be  used 
as  a  temporary  substitute  for  the  local  civil  courts,  when  those 
courts,  under  the  stress  of  circumstances,  have  ceased  to  func- 
tion, tho  in  such  cases  their  jurisdiction  should  properly  be 
regulated  by  the  local  statutes  governing  the  courts  for  which 
they  are  substitutes.44  But  whether  exercising  jurisdiction 
under  the  laws  of  war  or  as  a  substitute  for  the  local  courts, 
there  is  practically  no  limit  to  that  of  the  military  commissions 
—  if  they  have  jurisdiction  of  the  person  and  the  offence,  they 
may  proceed  with  the  trial  of  offences  committed  even  before  the 
initiation  of  military  government  or  martial  law.45 

The  procedure  of  military  commissions,  not  being  prescribed 
by  statute,  is  likewise  under  the  control  of  the  Executive. 
In  practise,  the  rules  of  procedure  laid  down  for  courts-martial 

40  Birkhimer,  op.  cit.,  378.  He  admits,  however,  that  martial  law  may 
be  invoked  "either  by  the  executive  or  the  law-making  power,  although 
the  former  generally  will  be  the  case."  Ibid.,  390.  But  Pomeroy  criticizes 
the  position  of  the  dissenting  justices  in  Ex  parte  Milligan  (4  Wall.,  2) 
that  Congress  may,  under  certain  circumstances,  declare  martial  law,  as 
"utterly  indefensible."  Constitutional  Law,  594.  Cf.  Glenn,  The  Army  and 
the  Law,  185. 

*i  Instances  of  the  proclamation  of  martial  law  by  Executive  authority 
are  given  in  Winthrop,  op.  cit.,  329-330. 

42  Ex  parte  Vallandigham,  1  Wall.,  243,  249  (1863). 

43  See  list  of  offences  charged  as  ' '  violations  of  the  laws  of  war ' '  dur- 
ing the  Civil  War,  in  Dig.  Ops.  J.  A.  G.,  465;  also  in  Davis,  op.  cit.,  310,  n. 

44  Dig.  Ops.  J.  A.  G.,  468. 

*5  Ibid.,  464 ;  Birkhimer,  op.  cit.,  533.  But  violations  of  the  laws  of  war 
cannot  legally  be  tried  after  the  war  or  emergency  has  terminated.  Win- 
throp, op.  cit.,  334. 


147]  POWERS  OF  MILITARY  JURISDICTION  147 

are  generally  observed,  and  authorities  hold  that  these  rules 
should  apply  as  consistently  as  possible.  That  is  not  obligatory, 
however,  and  the  powers  of  military  commissions  not  being  de- 
fined by  law,  their  proceedings  are  legal  even  if  details  that  are 
required  in  courts-martial  or  in  civil  courts  are  omitted,  such  as 
the  administering  of  a  specific  oath  to  members  of  the  court,  or 
giving  the  accused  the  opportunity  of  challenge.46 

There  are  likewise  no  statutes  governing  the  power  of  the  mili- 
tary commissions  to  inflict  punishments,  hence  it  is  a  power 
practically  without  restriction.  These  tribunals  are  not  limited 
to  the  penalties  known  to  courts-martial,  nor  are  the  strictly 
military  penalties —  dismissal  from  the  service,  dishonorable 
discharge,  and  the  like  —  generally  appropriate,  since  the  per- 
sons to  be  punshied  are  usually  civilians.  The  punishments  of 
death,  imprisonment,  or  fine  are  those  usually  inflicted  by  mili- 
tary commissions,  but,  especially  during  the  Civil  War,  have 
included  also  confiscation  of  property,  forfeiture  of  licenses  to 
trade,  expulsion  from  certain  sections  of  the  country,  furnishing 
bonds  for  good  behavior,  and  taking  the  oath  of  allegiance.47  In 
no  case  are  the  proceedings  or  sentences  of  military  commissions 
subject  to  appeal  to,  or  reversal  by,  any  civil  court.48 

Military  commissions,  deriving  their  authority  and  jurisdic- 
tion from  military  usage  and  the  common  law  of  war,  and  their 
creation,  composition,  procedure,  and  decisions  being  subject  to 
the  complete  control  of  the  Executive,  are  therefore,  even  more 
than  courts-martial,  merely  agencies  of  the  Executive  in  his  ca- 
pacity as  Commander-in-Chief.  Through  the  courts-martial,  as 
has  been  noted,  the  President  is  enabled  to  control  the  discipline 
of  the  armed  forces  and  enforce  military  law.  Through  the  mili- 
tary commissions  he  controls  the  administration  of  justice  in  war 
time,  not  only  in  the  theater  of  active  operations,  but  also  in 
places  declared  by  him  to  require  the  institution  of  martial  law, 
and  extending  to  all  classes  of  civilians  as  well  as  to  military 
persons.49  By  means  of  these  tribunals,  the  President's  powers 
to  carry  on  the  vigorous  prosecution  of  a  war  are  considerably 

«  Birkhimer,  op.  cit.,  533-534;   Winthrop,  op.  cit.,  334. 

47  Winthrop,  op.  cit.,  335. 

48  Ex  parte  Yallandigham,  1  Wall.,  243,  251-252  (1863). 

49  There  are  said  to  have  been  nearly  150  cases  of  women  tried  by  mili- 
tary commissions  during  the  Civil  War.     Davis,  op.  cit.,  309,  n. 


148  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [148 

extended ;  he  is  through  them  enabled  to  deal  effectively  with  that 
class  of  persons  who,  while  not  engaged  in  open  acts  of  hostility, 
may  in  one  way  or  another  be  interfering  with  the  success  of  the 
military  operations. 

Another  power  of  the  President,  which  should  be  noted  as  of 
some  importance  in  this  discussion,  is  his  power  to  grant  re- 
prieves and  pardons.  Tho  finally  vested  in  the  President  with- 
out limitation,  except  in  cases  of  impeachment,50  the  debates 
over  the  adoption  of  the  Constitution  reveal  considerable  fear  of 
the  wartime  use  of  this  power,  that  is,  its  use  especially  in  cases 
of  treason.  Luther  Martin  expressed  this  fear  when  he  said  to 
the  Maryland  legislature:  "The  power  given  to  these  persons 
[i.  e.,  the  President  and  Vice-President]  over  the  Army  and  Navy 
is  in  truth  formidable,  but  the  power  of  Pardon  is  still  more 
dangerous,  as  in  all  acts  of  Treason,  the  very  offence  on  which 
the  prosecution  would  possibly  arise,  would  most  likely  be  in  fa- 
vor of  the  President 's  own  power. ' ' 51  The  New  York  ratifying 
convention  of  1788  also  showed  its  fear  of  this  Executive  power 
by  proposing  the  following  amendment:  "That  the  executive 
shall  not  grant  pardons  for  treason,  unless  with  the  consent  of 
the  Congress ;  but  may,  at  his  discretion,  grant  reprieves  to  per- 
sons convicted  of  treason  until  their  cases  can  be  laid  before  the 
Congress. ' ' 52 

The  reason  for  vesting  this  power  in  the  President  was,  how- 
ever, well  stated  by  Hamilton  when  he  wrote:  "But  the  prin- 
cipal argument  for  reposing  the  power  of  pardoning  in  this  case 
[i.  e.,  in  case  of  treason]  in  the  chief  magistrate  is  this :  in  sea- 
sons of  insurrection  or  rebellion  there  are  often  critical  moments 
when  a  well-timed  offer  of  pardon  to  the  insurgents  or  rebels  may 
restore  the  tranquillity  of  the  commonwealth,  and  which,  if  suf- 
fered to  pass  unimproved,  it  may  never  be  possible  afterward  to 
recall.  The  dilatory  process  of  convening  the  legislature,  or  one 
of  its  branches,  for  the  purpose  of  obtaining  its  sanction  to  the 
measure  would  frequently  be  the  occasion  of  letting  slip  the 
golden  opportunity. ' ' 53 

so  Constitution,  Art.  II,  Sec.  2,  Cl.  1. 
siFarrand's  Records,  III,  158;  see  also  ibid.,  218. 
52 Elliot's  Debates,  I,  330. 

ss  The  Federalist,  No.  73  (74)  (Goldwin  Smith  ed.,  p.  411).  But  Hamil- 
ton's own  draft  of  a  constitution  contained  this  clause:  "He  shall  have 


149]  POWERS  OP  MILITARY  JURISDICTION  149 

Tho  Congress  has  on  occasion  attempted  to  assert  some  author- 
ity and  to  exercise  some  control  with  respect  to  the  granting  of 
pardons,  particularly  in  cases  of  rebellion  and  treason,54  the 
courts  have  uniformly  held  that  the  power  of  the  President  is 
complete  and  exclusive,  and  can  in  no  way  be  restricted  or  lim- 
ited in  its  effects  by  Congress.55  A  pardon  may  thus  be  granted 
by  the  President  before  or  after  conviction,  absolutely  or  upon 
conditions,  and  the  ground  for  its  exercise  is  wholly  within  the 
discretion  of  the  President.56 

Pardon  may  also  be  granted,  in  the  form  of  a  proclamation  of 
amnesty,  to  a  whole  class  of  offenders,  without  any  special  con- 
gressional authority.57  President  Washington  in  this  way  par- 
doned the  participants  in  the  Whiskey  Rebellion  of  1794  ;58  Presi- 
dent Adams  the  Pennsylvania  insurgents  of  1799  ;59  President 

power  to  pardon  all  offences,  except  treason,  for  which  he  may  grant  re- 
prieves, until  the  opinion  of  the  Senate  and  Assembly  can  be  had;  and, 
with  their  concurrence,  may  pardon  the  same."  Elliot's  Debates,  V,  587. 

s*  See  Acts  of  July  17,  1862  and  July  12,  1870.  12  Stat.  at  L.,  589,  592 
(See.  13) ;  16  ibid.,  230,  235. 

ss  Ex  parte  Garland,  4  Wall.,  333,  380  (1866);  United  States  v.  Klein, 
13  Wall.,  128,  139-140  (1871).  See  also  Taft,  Our  Chief  Magistrate  and  His 
Powers,  119-120;  Bascom,  Growth  of  Nationality,  120-122;  Glenn,  The 
Army  and  the  Law,  111. 

66  A  striking  instance  of  pardon  before  conviction  is  the  case  of  Maj. 
Gen.  Gaines  in  1846.  Altho  found  guilty  by  a  Court  of  Enquiry  of 
having  violated  orders  and  acted  illegally  in  calling  out  large  bodies  of 
militia  and  volunteers  without  authority,  and  by  these  acts  having  greatly 
embarrassed  the  government  and  cost  the  treasury  ' '  many  hundreds  of 
thousands  of  dollars,"  as  the  President  himself  said,  nevertheless  Presi- 
dent Polk  refused  to  convene  a  court-martial  but  ordered  all  further  prose- 
cution stopped.  Diary  of  James  K.  Polk,  I,  450,  480;  II,  82-83.  The 
President  has  also  frequently  used  his  power  of  pardoning  before  con- 
viction as  a  means  of  securing  the  return  to  duty  of  deserters  from  the 
military  service.  See,  for  example,  General  Orders  Nos.  43  and  102,  July  3, 
1866,  and  Oct.  10,  1873,  issued  by  the  direction  of  the  President,  cited  in 
20  Op.  Atty.  Gen.,  345;  also  executive  proclamations  in  Eichardson,  op.  tit., 
VI,  163,  164,  233,  278.  For  instances  of  the  exercise  of  the  pardoning 
power  after  conviction  for  treason,  see  McKinney,  ' '  Treason  under  the 
Constitution  of  the  United  States,"  Illinois  Law  Eev.,  XII,  381-402  (Jan., 
3918). 

57  20  Op.  Atty.  Gen.,  330. 

ss  Proclamation  of  July  10,  1795.  Eichardson,  op.  cit.,  I,  181. 

59  Proclamation  of  May  21,  1800.  Ibid.,  303. 


150  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [150 

Madison  the  so-called  Barataria  pirates  who  operated  during  the 
War  of  1812.60  President  Lincoln  also  used  this  means  of  offer- 
ing conditional  pardon  to  the  rebels  in  the  Civil  War;61  while 
President  Johnson  issued  four  separate  proclamations  of  amnesty 
and  pardon,  at  first  excluding  a  large  number  of  classes,  and 
finally  granting  a  full  and  general  pardon  to  all  participants  in 
the  Rebellion.62 

The  chief  significance  of  the  power  of  pardon  lies  not  only  in 
this  that  it  permits  the  President  to  offer  clemency  at  his  dis- 
cretion and  to  correct  acts  of  injustice  done  under  the  stress  of 
war,63  but  that  it  also  enables  him  practically  to  neutralize  the 
effect  of  statutes  passed  by  Congress  for  a  very  definite  pur- 
pose. Thus  the  Confiscation  Acts  of  the  Civil  War  64  provided 
for  the  confiscation  of  all  property  used  in  aid  of  the  rebellion, 
and  of  the  property  of  certain  classes  in  the  Confederacy,  wheth- 
er used  in  aid  of  the  rebellion  or  not;  while  the  Captured  and 
Abandoned  Property  Act 65  turned  over  to  the  Treasury  the  pro- 
ceeds of  all  property  picked  up  by  Federal  troops,  leaving  it  to 
the  owner  to  assert  his  claim  in  the  Court  of  Claims  on  establish- 
ing his  loyalty.  For  all  these  Acts,  the  Supreme  Court  held 
that  a  pardon  operated  to  purge  the  claimant  of  disloyalty,66  and 
hence  by  granting  a  general  pardon  the  President  was  enabled 
to  overrule  completely  the  intent  of  Congress  in  passing  these 
acts. 

Likewise  with  respect  to  such  acts  as  the  Espionage  Act,  pass- 

eo  Proclamation  of  Feb.  6,  1815.     Kichardson,  op.  tit.,  I,  558-560. 

ei  Proclamations  of  Dec.  8,  1863  and  Mar.  26,  1864.  Ibid.,  VI,  213-215, 
218. 

62  Proclamations  of  May  29,  1865 ;  Sept.  7,  1867 ;  July  4,  1868 ;  and  Dec. 
25,  1868.  Ibid.,  VI,  310-312,  547-549,  655-656,  708. 

es  The  Clemency  Board  appointed  by  the  President  to  review  court- 
martial  cases  adjudged  during  the  recent  war  passed  upon  2,857  cases 
from  Feb.  25  to  Apr.  25,  1919,  and  made  a  partial  or  complete  remission 
of  the  sentences  in  91  per  cent  of  the  cases  considered.  N.  Y.  Times  Cur- 
rent Hist.  Mag.,  X,  62  (July,  1919).  President  Lincoln's  generous  use 
of  the  pardon  toward  soldiers  convicted  of  purely  military  offenses  is 
well  known. 

e*  Acts  of  Aug.  6,  1861  and  July  17,  1862.  12  Stat.  at  L.,  319,  589. 

es  Act  of  Mar.  12,  1863.     Ibid.,  820. 

ee  United  States  v.  Padelford,  9  Wall.,  531,  542-543  (1869) ;  United 
States  v.  Klein,  13  Wall.,  128,  142  (1871). 


151]  POWERS  OF   MILITARY  JURISDICTION  151 

ed  during  the  recent  war  with  Germany,  the  President  might,  by 
a  general  pardon,  overcome  the  purpose  of  Congress  and  restore 
those  convicted  of  disloyalty  and  obstruction  to  their  full  rights 
as  loyal  citizens.67 


67  Shortly  after  the  signing  of  the  armistice,  a  strong  movement  de- 
veloped for  the  pardon  of  the  so-ealled  ' '  political  prisoners ' '  convicted  dur- 
ing the  war.  See,  for  example,  a  pamphlet,  "Political  Prisoners  in  Fed- 
eral Military  Prisons,"  published  by  the  National  Civil  Liberties  Bureau, 
Nov.  21,  1918.  See  also  The  Dial,  Jan.  11,  1919,  and  N.  T.  Times,  Dec. 
26,  1919.  In  March,  1920,  Senator  France  (Md.)  introduced  a  joint  reso- 
lution asking  that  these  political  prisoners  be  pardoned.  United  States  Bul- 
letin, Mar.  15,  1920.  President  Wilson  did  not  issue  any  such  general 
pardon. 


CHAPTER  IX 

POWERS  OF  MILITARY  GOVERNMENT 

Military  government,  or  the  government  of  occupied  territory 
is  defined  as  "that  dominion  exercised  in  war  by  a  belligerent 
power  over  territory  invaded  and  occupied  by  him  and  over  the 
inhabitants  thereof. ' ' 1  Military  government  in  this  sense  must 
be  carefully  distinguished  from  martial  law,  in  that  the  former 
is  exercised  only  in  time  of  war  over  the  inhabitants  of  an  occu- 
pied enemy  country;  while  the  latter  may  be  instituted  during 
any  emergency,  whether  in  time  of  war  or  peace,  over  the  citizens 
at  home.  Martial  law  also  requires  a  formal  proclamation  or 
declaration  before  it  can  be  put  into  effect,  while  military  gov- 
ernment exists  "simply  as  a  consequence  of  conquest  and  occupa- 
tion."2 

The  authority  to  institute  and  exercise  military  government 
arises  from  the  right  and  obligation  of  the  invading  belligerent, 
under  the  laws  of  war,  to  protect  his  own  forces  and  to  guaran- 
tee order  and  security  to  the  inhabitants  of  the  conquered  terri- 
tory.3 In  the  United  States,  that  right  and  that  obligation  are 
vested  in  the  President,  as  Commander-in-Chief,  and  are  exer- 
cised under  his  direction  and  by  his  subordinates.4  "The  effic- 

iWinthrop,  Abridgment  of  Military  Law  (2nd  ed.),  322;  Cf.  Birk- 
himer,  Military  Government  and  Martial  Law  (2nd  ed.),  45;  Pomeroy, 
Constitutional  Law  in  the  United  States  (Bennett  ed.),  595;  Magoon's 
Eeports,  12. 

aWinthrop,  op.  cit.,  322-323. 

3  See    B«gulations    of    Hague     Convention     respecting    the     Laws     and 
Customs  of  War  on  Land,  Art.   43,   in   Scott,   Texts  of  the  Peace   Con- 
ferences at  The  Hague,  225. 

4  "Acts  of  military  commanders  in  conducting  the  operations  of  war, 
and  especially  in  territory  in  military  occupation  are  by  the  presumed  au- 
thority of  the  commander-in-chief . ' '     Finley  &  Sanderson,   The  American 
Executive   and   Executive   Methods,    192;    cf.   Mechanics   Sank    v.    Union 
BanTc,  22  Wall.,  276,  297  (1874). 

152 


153]  POWERS  OP  MILITARY  GOVERNMENT  153 

lent  prosecution  of  hostilities  in  war  being  devolved  upon  the 
President  as  Commander-in-Chief , "  says  Winthrop,  "it  will  be- 
come his  right  and  duty  (unless  Congress  otherwise  provide)  to 
exercise  military  government  over  such  portion  of  the  country  of 
the  enemy  as  may  pass  into  the  possession  of  his  army  by  the 
right  of  conquest. ' ' 5 

Chief-Justice  Chase  has  likewise  defined  military  government 
as  military  jurisdiction  "to  be  exercised  in  time  of  foreign  war 
without  the  boundaries  of  the  United  States,  or  in  time  of  rebel- 
lion and  civil  war  within  states  and  districts  occupied  by  rebels 
treated  as  belligerents;  ...  by  the  military  commander 
under  the  direction  of  the  President,  with  the  express  or  im- 
plied sanction  of  Congress. ' ' 6 

The  powers  of  the  President  with  respect  to  military  govern- 
ment are  practically  absolute,  being  limited,  neither  by  the  Con- 
stitution and  laws  of  the  United  States  nor  by  the  laws  of  the 
country  under  occupation,  but  solely  by  the  laws  and  usages  of 
war.  "  It  is  not  the  civil  law  of  the  invaded  country ;  it  is  not  the 
civil  law  of  the  conquering  country ;  it  is  military  law  —  the  law 
of  war" — that  governs  a  military  occupant.7  As  Commander- 
in-Chief,  it  is  within  the  jurisdiction  of  the  President  to  deter- 
mine when  the  conquest  of  an  enemy  territory  has  been  suffi- 
ciently completed  to  warrant  or  require  the  institution  of  a  mili- 
tary government ; 8  and,  in  the  absence  of  congressional  action,  he 

s  Abridgment  of  Military  Law,  324. 

*Ex  parte  Milligan,  4  Wall.,  2,  141-142  (1866). 

7  Dow  v.  Johnson,  100  U.  8.,  158,  170  (1879).  "In  such  cases  the  laws 
of  war  take  the  place  of  the  Constitution  and  laws  of  the  United  States 
as  applied  in  time  of  peace. ' '  New  Orleans  v.  The  Steamship  Company, 
20  Wall.,  387,  394  (1874).  "The  right  of  one  belligerent  to  occupy  and 
govern  the  territory  of  the  enemy  while  in  its  military  possession,  is 
one  of  the  incidents  of  war,  and  flows  directly  from  the  right  to  conquer. 
We,  therefore,  do  not  look  to  the  Constitution  or  political  institutions 
of  the  conqueror  for  authority  to  establish  a  government  for  the  terri- 
tory of  the  enemy  in  his  possession,  during  its  military  occupation,  nor 
for  the  rules  by  which  the  powers  of  such  government  are  regulated  and 
limited.  Such  authority  and  such  rules  are  derived  directly  from  the 
laws  of  war  .  .  ."  Dooley  v.  United  States,  182  U.  8.,  222,  230-231 
(1901). 

sHornsby  v.  United  States,  10  Wall.,  224,  239  (1869).  Occasional- 
ly attempts  have  been  made  to  set  up  a  military  government  over  territory 
not  actually  under  occupation  and  control.  For  example,  Andrew  John- 


154  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [154 

may  likewise  determine  the  duration  of  such  military  occupation 
and  government.9 

The  President  may  also  determine  the  character  of  the  govern- 
ment to  be  established  over  occupied  territory;  that  is,  he  may, 
under  the  laws  of  war,  set  up  such  political  institutions  and  cre- 
ate a  government  with  such  powers  as  he  thinks  best  suited  for 
carrying  out  the  purposes  of  the  military  occupation.  Thus, 
during  the  war  with  Mexico,  President  Polk,  altho  he  had 
instructed  General  Kearney  to  establish  temporary  civil  govern- 
ments in  the  regions  conquered  by  him,10  disapproved  and  re- 
pudiated his  action  in  organizing  a  government  for  New  Mexico 
which  gave  to  that  region  the  status  of  a  permanent  territory  of 
the  United  States  and  which  recognized  the  inhabitants  as  Uni- 
ted States  citizens.11 

However,  in  spite  of  this  expressed  disapproval  of  the  prin- 
ciple upon  which  the  military  government  had  been  organized  in 
New  Mexico,  the  President  apparently  made  no  change  in  the 
machinery  or  institutions  set  up  there  by  General  Kearney.  More- 
over, he  expressed  no  disapproval  of  the  similar  territorial  gov- 
ernment organized  in  California  by  Commodores  Sloat  and 
Stockton;12  and  certainly  approved  that  established  in  March, 

son  was  appointed  military  governor  of  Tennessee  in  March,  1862,  when 
a  considerable  portion  of  the  state  was  still  unconquered  by  the  Union 
forces ;  and  General  Banks,  remarking  that  ' '  the  city  of  New  Orleans  is 
in  reality  the  State  of  Louisiana,"  ordered  an  election  held  in  January, 
1864,  for  governor  and  other  officers  for  the  entire  state.  See  A.  H.  Car- 
penter, "Military  Government  of  Southern  Territory,  1861-1865,"  in 
Beport,  Am.  Hist.  Assn.  1900,  I,  465-498,  esp.  477,  478.  President  Mc- 
Kinley  took  for  granted  that  the  capture  of  Manila  and  the  surrender 
of  the  Spanish  forces  there  ' '  practically  effected  the  conquest  of  the 
Philippine  Islands,"  and  therefore,  on  Dec.  21,  1898,  ordered  the  ex- 
tension of  the  military  government  theretofore  maintained  only  in  the 
city  of  Manila  to  the  entire  archipelago.  Richardson,  Messages  and  Papers 
of  the  Presidents,  X,  219. 

*Neely  v.  Herikel,  180  U.  S.,  109,  124  (1901);  Birkhimer,  op.  tit., 
21,  368. 

10  Thomas,  History  of  Military   Government  in  Newly  Acquired  Terri- 
tory of  the  United  States,  101-102. 

11  Message  to  Congress,  Dec.   22,   1846.   Richardson,  op.   cit.,   IV,   507; 
see  also  Diary  of  James  K.  Polk,  II,  282.  For  description  of  the  govern- 
ment   set   up    by    Gen.    Kearney    in    New    Mexico,    see    Thomas,    op.    cit., 
103-105. 

12  Thomas,  op.  cit.,  160-162,  165,  181.     However,  the  President  was  not 


155]  POWERS  OF  MILITARY  GOVERNMENT  155 

1847,  by  General  Kearney,  which,  altho  not  a  territorial  govern- 
ment in  name,  in  fact  practically  annexed  California  to  the  Uni- 
ted States  as  permanent  territory,  the  inhabitants  having  been 
absolved  from  all  allegiance  to  Mexico  and  considered  as  citizens 
of  the  United  States.13 

During  the  Civil  War,  military  governments  were  also  estab- 
lished by  the  President  in  the  occupied  portions  of  the  South, 
and  his  right  to  do  so  was  upheld  by  the  Supreme  Court  on  the 
ground  that  the  conflict,  "  though  not  between  independent  na- 
tions, but  between  different  portions  of  the  same  nation,  was  ac- 
companied by  the  general  incidents  of  an  international  war. ' ' 14 
In  fact,  one  writer  has  well  described  the  Civil  "War  as  "a  broad- 
ening drama  of  military  occupation,  successive  governments  be- 
ing established  as  the  Confederacy  gave  way. ' ' 15 

The  governments  established  were  of  a  peculiar  character,  how- 
ever, in  that  they  were  not  strictly  military  governments  in  the 
sense  in  which  that  term  is  used  in  international  law,  instituted 
to  afford  protection  for  the  occupying  forces  and  a  temporary  au- 
thority for  the  enemy  inhabitants.  They  involved  the  creation 
of  an  office  not  previously  known  in  American  constitutional  law 
—  that  of  military  governor  ;16  and  they  were  instituted  not  for 
the  ordinary  purposes  of  a  military  occupation,  but  with  the 
avowed  purpose  "to  re-establish  the  authority  of  the  Federal 

aware  of  the  action  taken  in  California  when  he  sent  his  message  to 
Congress;  and  his  disapproval  of  the  Stockton  government  may  be  as- 
sumed from  his  ignoring  that  regime  in  his  later  instructions  to  Gen. 
Kearney  to  take  charge  in  California. 

is  Thomas,  op.  cit.,  193-195.  In  October,  1847,  the  President  expressed 
himself  as  favoring  an  open  avowal  that  New  Mexico  and  California  should 
be  retained  by  the  United  States,  and  that  permanent  territorial  govern- 
ments should  be  established.  Diary  of  James  K.  Polk,  III,  190. 

i*  Dow  v.  Johnson,  100  U.  S.,  158,  164  (1879);  cf.  Coleman  v.  Ten- 
nessee, 97  U.  S.,  509,  517  (1878). 

!5  Glenn,  The  Army  and  the  Law,  97. 

is  The  ' '  military  governors ' '  appointed  during  the  Civil  War  were 
commissioned  as  such,  and  were  distinct  from  the  commanding  officer  of 
the  occupying  forces.  They  were  generally  selected  from  civil  life,  but  for 
the  occasion  were  given  military  rank,  commonly  that  of  Brigadier  Gen- 
eral. Previous  to  this,  no  "military  governor"  had  ever  been  appointed, 
the  commanding  officer  of  the  occupying  forces  merely  assuming  the 
duties  of  governor  by  virtue  qf  his  rank  as  the  superior  officer  in  the 
territory  concerned. 


156  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [156 

Government  .  .  .  and  to  provide  the  means  of  maintaining  the 
peace  and  security  to  loyal  inhabitants  .  .  .  until  they  shall 
be  able  to  establish  a  civil  government. ' ' 17  With  this  end  in 
view,  the  old  state  governmental  machinery  was  gradually  re- 
stored and  placed  in  the  hands  of  the  loyal  inhabitants  of  the  oc- 
cupied districts,  new  institutions  were  created  where  thought 
necessary,  and  new  state  constitutions,  designed  to  be  permanent, 
were  required  to  be  framed  and  adopted  —  all  of  which  was  up- 
held by  the  Supreme  Court  as  a  legitimate  exercise  of  the  Presi- 
dent's  power,  under  the  laws  of  war,  to  institute  military  gov- 
ernments.18 

During  the  Spanish-American  "War,  military  governments 
were,  by  order  of  President  McKinley,  established  in  the  Philip- 
pines, in  Porto  Rico,  and  in  Cuba,  at  first  of  the  general 
character  contemplated  by  the  laws  and  usages  of  military  occu- 
pation; that  is,  merely  temporary  governments  set  up  by  the 
military  commander  for  the  protection  of  the  occupying  forces 
and  the  security  of  the  inhabitants.19  In  Porto  Rico,  however, 
some  changes  were  made  in  the  political  and  judicial  system  that 
were  not  required  by  military  necessity,  and  the  government  is 
said  to  have  been  administered,  even  before  the  treaty  of  peace 
was  signed,  "as  though  the  island  were  a  permanent  possession 
of  the  United  States ; " 20  while  the  later  anomalous  government 
for  the  Philippines  was  presaged  by  the  sending  of  a  commission 
to  the  islands,  appointed  after  the  signing  but  before  the  final 
ratification  of  the  treaty,  with  instructions  to  "study  attentively 
the  existing  social  and  political  state  of  the  various  populations, 
particularly  as  regards  the  forms  of  local  government,  the  ad- 
ministration of  justice,  the  collection  of  customs  and  other  taxes, 

if  Statement  of  Secretary  of  War  Stanton,  quoted  by  A.  H.  Carpen- 
ter, op.  cit.,  478. 

18 "  So  long  as  the  war  continued  it  cannot  be  denied  that  he  might 
institute  temporary  governments  within  insurgent  districts,  occupied  by 
the  national  forces,  or  take  measures,  in  any  state,  for  the  restoration  of 
State  governments  faithful  to  the  Union,  employing,  however,  in  such  ef- 
forts, only  such  means  and  such  agents  as  were  authorized  by  constitu- 
tional laws."  Texas  v.  White,  7  Wall.,  700,  730  (1868). 

is  See  instructions  of  President  McKinley  to  the  Secretary  of  War, 
issued  May  19,  July  13,  and  Dee.  21,  1898.  Richardson,  op.  cit.,  X,  208- 
211,  214-216,  219-221. 

20  Thomas,  op.  cit.,  307. 


157]  POWERS  OF   MILITARY  GOVERNMENT  157 

the  means  of  transportation,  and  the  need  of  public  improve- 
ments. ' ' 21 

Having  therefore  the  power,  as  Commander-in-Chief,  to  insti- 
tute such  a  temporary  government  for  occupied  territory  as  he 
may  see  fit,  the  President  may  also  perform  all  the  necessary 
functions  of  that  government,  whether  executive,  legislative,  or 
judicial.22  He  has,  in  the  first  place,  complete  control  over  the 
appointment  and  removal  of  officers  for  that  government.  He 
may  continue  in  office  such  of  the  local  officials  as  he  sees  fit,  or 
he  may  remove  them  at  his  discretion  and  appoint  a  new  set  of 
officials,  who,  upon  the  sole  authority  of  the  President,  supersede 
the  existing  officials  and  administer  the  government  under  his 
direction. 

Thus,  President  Polk,  in  his  instructions  to  General  Kearney 
with  regard  to  the  governments  to  be  established  by  him  in  New 
Mexico  and  California,  urged  him  "to  continue  in  their  employ- 
ment all  such  of  the  existing  officers  as  are  known  to  be  friendly 
to  the  United  States,  and  will  take  the  oath  of  allegiance  to 
them ; "  23  and  President  McKinley  similarly  instructed  the  Sec- 
retary of  "War  in  1898,  that  judges  and  other  officials  of  justice 
in  the  occupied  territories  should  continue  in  office,  if  they  ac- 
cepted the  authority  of  the  United  States  and  the  supervision  of 
the  American  commander.  He  reminded  the  Secretary,  how- 
ever, that  under  the  laws  of  war,  "if  the  course  of  the  people 
should  render  such  measures  indispensable  to  the  maintenance  of 
law  and  order, ' '  the  commander  of  the  occupying  forces  had  the 
power  "to  replace  or  expel  the  native  officials  in  part  or  alto- 
gether, to  substitute  new  courts  of  his  own  constitution  for  those 
that  now  exist,  or  to  create  such  new  or  supplementary  tribunals 
as  may  be  necessary. ' ' 2* 

In  the  military  governments  established  during  the  Civil  War, 
on  the  other  hand,  the  power  of  removal  was  exercised  exten- 

21  The   commission  consisted   of  Jacob   G.   Schurman,   Admiral   Dewey, 
Maj.  Gen.  Otis,  Charles  Denby,  and  Dean  C.  Worcester.     See  the  Presi- 
dent's instructions  to  the  Secretary  of  State,  Jan.  20,  1899.     Richardson, 
op.  tit.,  X,  222-223. 

22  Cross  v.  Harrison,  16  How.,  164,  190  (1853);  Leitensdorfer  v.  Webb, 
20  How.,  176,  177-178  (1857) ;  The  Grapeshot,  9  Wall.,  129,  133   (1869) ; 
Boot,  Military  and  Colonial  Policy  of  the  United  States,  252. 

23  Instructions  of  June  3,  1846.     Thomas,  op.  cit.,  102. 

24  Richardson,  op.  cit.,  X,  209-210,  215,  220. 


158  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [158 

sively,  being  applied  not  only  to  public  officials  of  low  and  high 
degree,  such  as  state  officers,  judges,  and  mayors;  but  also  to 
officers  of  semi-public  and  even  private  concerns,  such  as  library 
officials,  officers  and  professors  at  state  universities,  and  officers 
of  chambers  of  commerce.  Where  they  were  not  removed,  the 
officials  were  "little  more  than  figureheads,"  strictly  subordin- 
ate to  the  military  commander,  and  holding  their  positions  only 
by  his  permission.25 

The  officials  appointed  may  be  either  civilians  or  military  per- 
sons, within  the  discretion  of  the  appointing  authority.  Thus, 
the  principal  officials  appointed  by  General  Kearney  in  New 
Mexico  were  all  civilians,  including  a  governor,  secretary,  and 
three  members  of  the  supreme  court,  altho  the  duties  of  governor 
were  later  performed  by  military  officers  ;26  while  in  California, 
under  similar  conditions,  the  principal  officials  were  military  men 
under  both  the  Stockton  and  Kearney  regimes.27  The  "mili- 
tary governors"  appointed  by  President  Lincoln  were  all  civ- 
ilians, given  military  rank  for  the  occasion,28  and  there  seemed 
to  be  a  conscious  effort  to  fill  most  of  the  subordinate  offices  also 
with  civilians.  However,  many  of  the  commanding  officers  ex- 
ercised the  functions  of  a  military  governor,  by  virtue  of  their 
rank,  in  the  territory  occupied  by  the  forces  under  their  com- 

25  A.  H.  Carpenter,  op.  tit.,  481. 

26  Charles    Bent,   appointed   governor   by   Gen.   Kearney,   was   killed   in 
an  insurrection,  Jan.   19,   1847.     Secretary   Vigil,   who   thereupon   became 
acting  governor,  was  appointed  governor  Dee.   17,  1847,  by  the  military 
commander,  Col.  Price,  and  served  till  Dec.  11,  1848,  when  the  duties  of 
' '  civil  and  military  governor ' '  were  assumed  by  Col.  J.  M.  Washington, 
by  virtue  of  his  rank  as  commanding  officer.     He  was  in  turn  succeed- 
ed Oct.   23,  1849,  by  Col.  John  Munroe,  who  served  till  the  end  of  the 
military  regime.  Thomas,  op.  tit.,  115-116,  128. 

27  Col.  John  C.  Fremont  acted  as  governor  for  a  short  time  under  ap- 
pointment from  Stockton;  while  under  Kearney  the  principal  offices  were 
fiDed  as  follows:   governor,  Col.  E.  B.  Mason;   secretary  of  state,  Lt.  H. 
W.  Halleck  (later  famous  as  a  Civil  War  general  and  as  a  writer  on  in- 
ternational law) ;    collector  of  customs,  Capt.  J.   L.   Folsom.   Col.   Mason 
was  succeeded   by  Brig.   Gen.   Biley,  who   served  till  the  organization   of 
the  state  government.     Thomas,  op.  tit.,  181;   Winthrop,  op.  tit.,  324-325. 

28  Andrew    Johnson    was    commissioned    military    governor    of    Tennes- 
see, with  rank  of  Brigadier  General;   likewise  John   S.   Phelps  of  Arkan- 
sas;      Edward    Stanly    of    North    Carolina;    and    George    F.    Shepley    of 
Louisiana. 


159]  POWERS  OF   MILITARY  GOVERNMENT  159 

mand.  During  the  period  of  the  war  with  Spain,  President  Mc- 
Kinley  placed  the  military  governments  established  by  him  in 
charge  of  the  commanding  officers  and  their  military  subordin- 
ates, gradually  supplanting  them  with  civilians  after  the  United 
States  had  acquired  permanent  possession.29 

These  powers  of  appointment  and  removal  may  be  exercised,  as 
has  been  noted,  either  by  the  President  directly,  or  through  the 
commanding  officer  or  other  subordinate  with  due  authority  in 
the  occupied  district.  Usually  the  commanding  officer  assumes 
the  duties  of  a  military  governor  by  virtue  of  his  rank,  without 
any  special  appointment  as  such.  In  other  cases,  as  in  the  mili- 
tary governments  established  in  the  South,  a  military  governor 
was  appointed  by  the  President  for  each  particular  occupied  dis- 
trict, distinct  from  the  commanding  officer  in  that  region ;  while 
again,  as  in  New  Mexico  and  California,  the  functions  of  com- 
manding officer  and  military  governor  have  been  performed, 
sometimes  by  different  persons,  sometimes  by  the  same  person. 
As  a  general  rule,  where  the  government  is  presumed  to  be 
strictly  military  in  character  the  President  has  left  the  appoint- 
ment of  the  officials  in  active  charge  to  the  commanding  officer, 
who  may  then  select  either  civilians  or  military  officers.  Thus 
when  Secretary  Vigil  became  acting  governor  in  New  Mexico 
after  the  death  of  Governor  Bent,  and  besought  the  Washington 
authorities  to  appoint  a  successor,  Secretary  of  War  Marcy  re- 
plied that  the  government  being  purely  military,  the  appoint- 
ment of  a  governor  would  be  left  to  the  commanding  officer 
(Colonel  Price).30 

29  Maj.  Gen.  Wesley  L.  Merritt  set  up  a  military  government  in  the 
city  of  Manila  immediately  upon  its  capture  and  occupation  on  Aug.  13, 

1898,  which  military  government  was  later  extended  to  the  whole  archi- 
pelago by  his  successor,  Maj.   Gen.  E.   S.   Otis,   acting  under  the  direct 
order   of  the   President.     Gen.   Otis  was   succeeded   on  May   5,   1900,  by 
Maj.  Gen.  Arthur  MacArthur,  who  was  in  turn  succeeded  on  July  4,  1901, 
by  Maj.  Gen.  A.  E.  Chaffee.     Porto  Rico  was  occupied  by  forces  under 
Gen.  Nelson  A.  Miles,  July  25,  1898,  but  a  military  government  was  first 
formally   established   Oct.    18,   by   Maj.    Gen.   John   R.   Brooke.     He   was 
succeeded  on  Dec.   9,  1898,  by  Maj.   Gen.   G.  V.  Henry,  and  on  May  9, 

1899,  by  Brig.   Gen.  G.  W.   Davis.     In  Cuba,  a  formal  military  govern- 
ment for  the  whole  island  does  not  appear  to  have  been  set  up  till  Dec. 
13,   1898,  when  a  Division  of  Cuba  was  created,  with  Maj.  Gen.  Brooke 
as  commander  and  military  governor.     He  was   succeeded  in  Dec.,   1899, 
by  Maj.   Gen.  Leonard  Wood. 

so  Thomas,  op.  tit.,  123. 


160  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [160 

While  the  President 's  power  with  regard  to  the  government  of 
occupied  territory  is  therefore  justly  said  to  be  "necessarily 
despotic,"  it  has  been  held  that  this  applied  only  to  his  execu- 
tive or  administrative  power,  and  not  to  his  power  to  legislate 
for  that  territory.  ' '  His  power  to  administer  would  be  absolute, ' ' 
says  the  Supreme  Court,  "but  his  power  to  legislate  would  not 
be  without  certain  restrictions  —  in  other  words,  they  would  not 
extend  beyond  the  necessities  of  the  case. ' ' 31  However,  it  seems 
to  be  within  the  power  of  the  President,  as  Commander-in-Chief , 
to  judge  of  the  "necessities  of  the  case,"  hence  the  restriction 
amounts  in  practise  to  very  little. 

The  President  has  the  power,  directly  or  through  his  subor- 
dinates, to  issue  orders  for  the  government  of  a  conquered  terri- 
tory, at  least  until  Congress  has  acted,  and  these  orders  have  the 
force  of  law.32  Altho  definite  affirmative  action  on  the  part  of 
the  President  or  the  military  commander  is  required  in  order 
to  change  the  local  municipal  law  of  the  conquered  territory,  he 
may,  if  he  thinks  necessity  demands  such  a  step,  abolish  entirely 
the  laws  of  that  territory  and  substitute  laws  and  regulations  of 
his  own  making,  or  he  may  supplement  the  local  municipal  law 
with  such  regulations  as  he  may  deem  necessary  and  proper.33 

President  Polk  in  1846  thus  defined  the  principles  to  which  the 
laws  adopted  for  a  conquered  territory  should  conform,  when  he 
declared  to  Congress  that  "such  organized  regulations  as  have 
been  established  in  any  of  the  conquered  territories  for  the  se- 
curity of  our  conquest,  for  the  preservation  of  order,  for  the  pro- 
tection of  the  rights  of  the  inhabitants,  and  for  depriving  the 
enemy  of  the  advantages  of  these  territories  while  the  military 
possession  of  them  by  the  forces  of  the  United  States  continues, 

aiDooley  v.  United  States,  182  U.  S.,  222,  234  (1901);  cf.  Moore's 
Digest,  271;  Eaymond  v.  TJwmas,  91  U.  S.,  712,  716  (1875). 

32  Cross  v.  Harrison,  16  How.,  164,  190  (1853). 

33 '  <  Until  he  acts,  it  is  presumed  that  he  intends  to  leave  it  of  full 
effect."  Glenn,  The  Army  and  the  Law,  101,  n. ;  Coleman  v.  Tennessee, 
97  U.  S.,  509,  517  (1878).  President  McKinley,  in  1898,  ordered  that 
the  rule  of  international  law  which  required  that  the  municipal  law 
of  the  conquered  territory  should  be  considered  as  remaining  in  force,  so 
far  as  compatible  with  the  new  order  and  until  suspended  or  superseded 
by  the  occupying  belligerent,  be  adhered  to  as  far  as  possible.  Richardson, 
op.  cit.,  X,  209.  Cf.  Winthrop,  op.  tit,,  323;  Davis,  Treatise  on  the  Mili- 
tary Law  of  the  United  States,  300-301. 


161]  POWERS  OF  MILITARY  GOVERNMENT  161 

will  be  recognized  and  approved. ' ' 34  Accordingly,  altho  at  that 
time  he  disapproved  the  attempt  to  give  New  Mexico  the  status 
of  a  permanent  territory  of  the  United  States,  as  has  been  noted, 
the  President  apparently  accepted  and  approved  the  action  of 
General  Kearney  in  adopting  an  organic  law  for  that  region, 
copied  from  the  organic  law  of  Missouri  Territory,35  and  in  put- 
ting into  effect  numerous  other  laws,  compiled  from  neighboring 
state  and  territorial  laws  and  from  the  laws  of  Mexico.36  In 
California,  on  the  other  hand,  the  legislative  council  established 
under  the  Stockton  government  was  ignored  and  omitted  in  the 
government  set  up  by  General  Kearney  under  instructions  from 
the  President,37  and  the  orders  of  the  military  governor  there- 
fore continued  there  to  be  the  only  source  of  law. 

In  the  occupied  districts  of  the  South,  elections  were  conduct- 
ed under  regulations  prescribed  by  the  military  governor,  con- 
ventions were  held  under  his  supervision,  and  the  constitutions 
and  governments  created  thereby  were  inaugurated  under  his 
authority.  For  example,  General  Banks  ordered  an  election  held 
in  Louisiana  in  January,  1864,  for  governor  and  other  officers, 
with  the  regulation  that  those  entitled  to  the  rights  of  United 
States  citizens  would  be  required  to  participate,  "indifference" 
to  be  treated  as  a  crime  and  "faction"  as  treason.  Governor 
Shepley,  in  the  same  state,  later  ordered  an  election  for  dele- 
gates to  a  constitutional  convention,  for  which  he  decreed  the 
registration  of  all  loyal  citizens,  determined  the  ratio  of  repre- 
sentation in  the  convention,  and  supervised  the  registration  and 
election  officers  in  their  work.  In  Arkansas,  elections  held  under 
the  revised  constitution  were  set  aside  under  authority  from 
President  Lincoln,  new  elections  were  held,  and  new  officers  in- 
augurated ;  while  in  Tennessee  also,  the  confirmation  and  approv- 
al of  the  military  governor  was  apparently  necessary,  not  only 
for  the  holding  of  elections,  but  in  order  that  persons  duly  chosen 
might  act.38 

s*  Message  of  Dec.  22,  1846.     Eichardson,  op.  cit.,  IV,  507. 

35  It  was,   for  example,   under   the   provisions   of  this   ' '  organic   law 
that   Secretary  Vigil   became   acting   governor   of   New   Mexico   upon   the 
death  of  Governor  Bent  in  January,  1847. 

se  Thomas,  op.  cit.,  103-105. 

^Ibid.,  181. 

ss  A.  H.  Carpenter,  op.  cit.,  478,  482. 


162  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [162 

This  military  supervision  and  control  of  elections  extended 
during  the  Civil  War  even  to  the  occupied  districts  in  the  border 
states  which  were,  strictly  speaking,  not  subject  to  military  gov- 
ernment and  whose  constitutional  rights  were  pronounced  as 
"theoretically  equal  to  the  rest  of  the  Union."  Thus,  in  various 
places  in  Kentucky  orders  and  proclamations  were  issued  by  the 
military  authorities,  by  which  army  officers  were  required  to 
see  that  none  but  loyal  persons  voted  or  were  candidates  at  the 
elections,  or  acted  as  election  officers;  in  Missouri  "voting  con- 
trary to  orders"  was  declared  to  be  a  military  offense;  and  in 
Maryland  provost-marshals  were  ordered  to  "assist"  election 
judges  in  administering  the  oath  of  allegiance  and  in  reporting 
those  who  failed  to  carry  out  the  regulations.  "In  this  way  the 
military  became  the  judge  and  interpreter  of  the  civil  author- 
ities and  even  of  the  laws  themselves. ' ' 39 

The  President  may  likewise  exercise  complete  control  over 
the  municipalities  within  the  occupied  territory.  He  may,  through 
the  proper  subordinates,  "change  or  modify  either  the  form  or 
the  constituents  of  the  municipal  establishments;  may,  in  place 
of  the  system  and  regulations  that  formerly  prevailed,  substitute 
new  and  different  ones. ' ' 40  Thus,  during  the  Civil  War,  this 
municipal  control  extended  to  the  founding  of  courts,  legislation 
concerning  property,  the  establishment  of  bureaus  in  charge  of 
various  city  activities,  the  enforcement  of  a  system  of  licenses, 
the  appointment  and  removal  of  officials,  the  creation  of  police 
forces,  and  the  censorship  of  newspapers.41 

Numerous  other  powers  with  regard  to  the  government  of 
occupied  territory  that  are  legislative  in  character  may  also  be 
exercised  by  the  President.  He  may  provide  the  finances  neces- 
sary for  the  support  of  the  occupying  forces  and  the  expenses  of 
the  administration  of  the  territory  by  the  levying  of  military 
contributions,  the  collection  of  the  regular  taxes,  and  the 
imposition  of  customs  duties,42  his  judgment  as  to  the  propriety 

39  A.  H.  Carpenter,  op.  cit.,  482-483. 

*°  Attorney-General  Griggs  to  the  Secretary  of  War,  July  10,  1898. 
22  Op.  Atty.  Gen.,  527,  528. 

«A.  H.  Carpenter,  op.  cit.,  493-496;  cf.  Garner,  Reconstruction  in  Miss- 
issippi, 38. 

42  Lawrence,  Principles  of  International  Law,  445;  Eichardson,  op.  cit., 
IV,  570-572,  672-678;  Winthrop,  op.  cit.,  326;  Dooley  v.  United  States, 


163]  POWERS  OF  MILITARY  GOVERNMENT  163 

of  such  measures  being  necessarily  arbitrary  and  absolute.43  He 
may  likewise  promulgate  measures  for  the  regulation  of  trade 
and  intercourse  with  the  occupied  territory  ;44  establish  and  main- 
tain telegraph  and  railroad  lines,  even  tho  their  business  con- 
flict with  the  vested  rights  of  private  companies  ;45  grant  licenses 
and  enter  into  contracts  whose  provisions  are  binding  even  after 
the  termination  of  the  military  occupation;40  and  restrict  the 
right  of  private  ownership.47 

The  judicial  powers  of  the  President  in  occupied  territory  are 
also  extensive.  He  has  complete  control  over  the  establishment, 
jurisdiction,  and  functioning  of  the  military  courts,  such  as 
courts-martial,  provost  courts,  and  military  commissions.48  In 
addition,  the  President  may  exercise  supervision  over  civil  courts 
already  in  existence,49  or  he  may  create  such  civil  courts  as  he 
deems  necessary,  displacing  or  supplementing  those  already  ex- 
isting. Thus,  in  New  Mexico  General  Kearney  established  a  com- 
plete judicial  system,  consisting  of  a  superior  or  appellate  court 
and  district  courts,  and  defined  their  jurisdiction.50 

During  the  Civil  War,  provost  courts  were  established  by  the 
military  commanders  in  New  Orleans  and  elsewhere,  with  civil 
and  criminal,  as  well  as  military  jurisdiction,  and  supplanting 
in  many  cases  the  lower  state  courts  and  the  local  police  courts. 
President  Lincoln  himself,  by  executive  order  of  October  20, 

182  U.  8.,  222,  231-233  (1901).  For  view  that  the  President  does  not 
have  these  powers,  see  Kent's  Commentaries,  I,  292,  quoted  in  Moore's 
Digest,  VII,  270. 

**Dow  v.  Johnson,  100  U.  S.,  158,  165  (1879);  Herrera  v.  United 
States,  222  U.  S.,  558,  571  (1912).  During  the  Mexican  War,  President 
Polk  at  first  gave  Scott  and  Taylor  discretionary  authority  to  exact  con- 
tributions, but  neither  having  done  so,  he  later  made  his  orders  "per- 
emptory and  stringent"  that  such  exactions  should  be  made.  Diary  of 
James  K.  Polk,  III,  156.  Gen.  Scott  is  said  to  have  collected  contribu- 
tions of  about  $22,000  from  19  Mexican  states.  Winthrop,  op.  cit.,  326. 

«  Birkhimer,  op.  cit.,  272;  Fleming  v.  Page,  9  How.,  603,  615  (1849); 
cf.  A.  H.  Carpenter,  op.  cit.,  489-493. 

4523  Op.  Atty.  Gen.,  425;  Magoon's  JReports,  391-407. 

**New  Orleans  v.  Steamship  Company,  20  Wall.,  387,  394-395  (1874); 
23  Op.  Atty.  Gen.,  551,  559-563. 

47  Moore's  Digest,  VII,  264;  For.  Bel.  1901,  App.,  97. 

48  Supra,  ch.  VIII. 

49  See  A.  H.  Carpenter,  op.  cit.,  484-485. 
6°  Winthrop,  op.  cit.,  325. 


164  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [164 

1862,  created  a  provisional  court  for  Louisiana,  which  has  been 
described  as  "the  Alpha  and  Omega  of  justice  for  Louisiana." 
In  this  order  the  President  appointed  the  judge  (Charles  A.  Pea- 
body),  and  gave  the  court  jurisdiction  over  "all  causes,  civil  and 
criminal,  including  cases  in  law,  equity,  revenue,  and  admiralty, 
and  particularly  all  such  powers  and  jurisdictions  as  belong  to 
the  district  and  circuit  courts  of  the  United  States."  He  also 
prescribed  the  rules  of  procedure;  made  the  decisions  of  the 
court  "final  and  conclusive,"  with  appeals  forbidden;  and  vest- 
ed in  it  the  power  to  appoint  the  prosecuting  attorney,  marshal, 
and  clerk.  While  the  state  laws  in  force  were  to  be  administered 
by  this  court ' '  as  far  as  possible, ' '  the  orders  of  the  military  com- 
manders were  recognized  as  of  "  paramount  authority. ' ' 51 

All  of  these  acts  of  the  President  were  upheld  by  the  Supreme 
Court  in  several  decisions,52  and  his  power,  as  Commander-in- 
Chief,  to  organize  and  practically  to  control  the  judiciary  in 
territory  under  military  occupation,  was  clearly  affirmed,53  with 
only  the  limitation  that  neither  the  President  nor  any  military 
commander  can  establish  a  court  in  such  occupied  territory  to 
adjudicate  prize  cases  or  to  administer  the  law  of  nations.5* 

Since  all  the  powers  and  functions  of  military  government  are 
therefore  concentrated  in  the  hands  of  the  President,  with  scarce- 
ly any  limitation,  it  would  not  seem  to  be  an  exaggeration  to  char- 
acterize such  government  as  "an  absolutism  of  the  most  com- 
plete sort."55 


si  A.  H.  Carpenter,  op.  tit.,  485-486. 

52  Leitensdorfer  v.  Webb,  20  How.,  176  (1857);  The  Grapeshot,  9 
Wall.,  129  (1869) ;  Burke  v.  Miltenberger,  19  Wall.,  519  (1873) ;  Mechan- 
ics Bank  v.  Union  Bank,  22  Wall.,  276  (1874). 

ss ' '  When  enemies '  territory  is  occupied,  or  territory  to  which  the 
rules  of  law  assign  that  name,  though  it  be  that  of  a  State  of  the  Union, 
the  President  can  replace  its  courts  by  courts  of  his  own,  exercising  both 
civil  and  criminal  jurisdiction,  and  disposing  of  life,  liberty,  and  prop- 
erty, not  as  instruments  of  the  judicial  authority  of  the  United  States, 
but  as  instruments  of  the  executive  authority."  Baldwin,  Modern  Polit- 
ical Institutions,  103. 

B*Jecker  v.  Montgomery,  13  How.,  498,  515  (1851). 

55  A.  H.  Carpenter,  op.  tit.,  496 ;  Willoughby,  Constitutional  Law,  I,  390. 


III.  Civil  Powers  in  Time  of  War 


CHAPTER  X 

CONTROL  OF  ADMINISTRATION 

It  has  been  pointed  out  by  a  distinguished  authority  how  the 
original  American  conception  of  executive  power  was  to  the  effect 
that  the  President  had  been  vested  with  military  and  political 
rather  than  administrative  power;  and  further,  how  that  con- 
ception has  changed,  so  that  now  the  President  is  generally  rec- 
ognized, through  powers  conferred  by  statute  and  derived  from 
the  Constitution  itself,  as  "not  merely  the  political  head  of  the 
United  States  national  government  but  as  well  the  head  of  its 
administrative  system. ' ' * 

This  position  of  the  President  naturally  becomes  especially  im- 
portant in  time  of  war,  when  the  exigencies  of  the  situation  re- 
quire the  creation  of  additional  governmental  agencies  and  a 
vast  expansion  in  the  general  field  of  administration.  Through 
his  constitutional  powers  of  appointment,  removal,  supervision, 
and  direction,  the  scope  of  the  President's  administrative  author- 
ity is  at  such  a  time  automatically  extended,  if  his  specific  powers 
are  not  actually  increased. 

In  addition,  Congress  at  such  a  time  is  inclined  to  recognize 
the  wisdom  of  Hamilton's  arguments  for  a  vigorous  and  unified 
Executive,2  and  to  entrust  exceptional  administrative  control  to 
the  President.  That  is  particularly  true  with  regard  to  ad- 
ministrative agencies  created  to  meet  the  special  military  needs 
of  the  country.  Thus  the  actual  administration  of  the  Draft 
Acts  of  the  Civil  War 8  was  given  over  to  the  President,  altho 
hedged  about  with  such  an  amount  of  statutory  detail  as  to 

1  Goodnow,  Principles  of  the  Administrative  Law  in  the  United  States, 
73-82. 

2  See  The  Federalist,  No.  69  (70),  (Goldwin  Smith  ed.,  p.  386ff.). 

s  Acts  of  Mar.  3,  1863,  Feb.  24,  1864,  and  July  4,  1864.  12  Stat.  at  L., 
731;  13  ibid.,  6,  390. 

167 


168  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [168 

leave  him  with  little  discretionary  authority.  The  work 
of  administering  the  provisions  of  the  draft  was  carried  out 
through  a  Provost  Marshal  General,  and  through  enrollment 
boards,  one  for  each  district  into  which  the  United  States  was 
divided.  Each  such  board  was  to  be  composed  of  the  provost- 
marshal  for  the  district,  a  licensed  physician,  and  one  other  per- 
son, to  be  appointed  by  the  President.  Their  duties,  however, 
were  definitely  defined  by  statute,  hence  the  President's  author- 
ity was  principally  such  as  resulted  from  his  control  over  the 
personnel  of  the  administrative  machinery  and  from  his  general 
powers  of  supervision. 

The  Selective  Service  Act  of  the  recent  war 4  went  much  fur- 
ther in  entrusting  the  President  with  large  powers  of  adminis- 
tration. The  Act  provided  for  the  registration  of  all  male  per- 
sons between  the  ages  of  21  and  30  (later  extended  to  include  all 
between  the  ages  of  18  and  45  5 ) ,  but  gave  the  President  com- 
plete authority  to  designate  the  time  and  place  for  such  registra- 
tion, and  to  prescribe  the  rules  and  regulations  in  accordance 
with  which  it  should  be  held.  Under  this  provision,  President 
Wilson  issued  no  less  than  thirteen  separate  proclamations,  desig- 
nating the  various  times  and  places  for  the  registration.6  He 
likewise  issued  detailed  regulations  for  the  execution  of  the  reg- 
istration provisions  of  the  act. 

These  regulations  created  an  administrative  system,  consisting 
of  the  Provost  Marshal  General  as  the  chief  administrative  offi- 
cer ;  the  governor  and  adjutant  general  of  each  state  as  his  prin- 
cipal assistants ;  a  board  of  registration  for  each  county  or  cor- 
responding subdivision,  consisting  of  three  members  named  by 

4  Act  of  May  18,  1917.  Public  No.  12,  65  Cong.,  in  Wigmore,  Source- 
Boole  of  Military  Law  and  War-time  Legislation,  460-468. 

s  Act  of  Aug.  31,  1918.  Public  No.  210,  65  Cong.,  ibid.,  471-474. 

« Proclamations  of  May  18,  June  27,  June  30,  July  2,  1917;  May  20, 
June  11,  June  17,  June  18,  Aug.  13,  Aug.  31,  Sept.  18,  Oct.  10  (2), 
1918.  U.  S.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  20,  30,  35,  36;  ibid.,  2 
Sess.,  137,  149,  152,  155,  190,  196,  207,  212,  216.  So  many  proclamations 
were  issued  for  the  reason  that  different  registration  dates  were  designat- 
ed for  the  various  parts  of  the  territory  of  the  United  States.  Thus  June 
5,  1917,  was  named  as  the  first  registration  day  in  continental  United 
States  (execept  Alaska),  July  5  in  Porto  Rico,  July  2  —  Sept.  2  in  Alaska, 
and  July  31  in  Hawaii;  similarly  with  respect  to  the  days  later  named 
under  the  amendatory  acts  of  1918. 


169]  CONTROL  OF  ADMINISTRATION  169 

the  governor  (or  by  the  mayor  in  cities  of  over  30,000  popula- 
tion), none  of  whom  were  to  be  in  any  way  connected  with  the 
military  establishment;  and  one  or  more  registrars  for  each  vot- 
ing precinct.  These  Presidential  regulations  further  defined  the 
jurisdiction  and  duties  of  these  various  officials  in  connection 
with  the  registration;  prescribed  the  compensation  of  the  regis- 
trars ;  and  outlined  in  detail  the  forms  and  methods  under  which 
the  registration  should  take  place.7 

The  local  administration  of  the  conscription  provisions  of  the 
Selective  Service  Act  was  carried  out  through  local  and  district 
boards,  appointed  by  the  President;  the  former,  one  for  each 
county  or  corresponding  subdivision,  consisting  of  three  or  more 
members,  none  of  whom  was  to  be  connected  with  the  military 
establishment ; 8  the  latter,  one  or  more  for  each  federal  judicial 
district,  composed  of  such  number  of  members,  likewise  civilians, 
as  the  President  might  determine.  The  duties  of  these  boards 
were  outlined  in  the  act;  but  the  President  was  authorized  to 
prescribe  the  rules  and  regulations  under  which  the  boards  should 
operate,  to  make  rules  and  regulations  governing  their  organiza- 
tion and  procedure,  and  to  make  ' '  all  other  rules  and  regulations 
necessary  to  carry  out  the  terms  and  provisions  of  this  section. ' ' 9 

Accordingly,  President  Wilson,  on  June  30,  1917,  issued  regu- 
lations, describing  in  detail  the  organization,  duties,  and  proced- 
ure of  the  local  and  district  boards  ;10  and  on  November  8,  1917, 
further  regulations,  covering  in  detail  the  jurisdiction  of  the 
official  boards  and  auxiliary  organizations,  the  rules  and  prin- 
ciples governing  the  classification  of  the  men,  the  process  of  selec- 
tion, the  procedure  of  induction  and  mobilization,  forms  to  be 
observed,  and  the  like.11  The  boards  were  subject  to  the  immed- 

7  See  Registration  Regulations,  issued  as  a  separate  pamphlet  by  the 
Government  Printing  Office,  1917. 

8  As  a  general  rule,  the  registration  boards  were  reconstituted   as  the 
local  boards. 

9  Selective  Service  Act,  Sec.  4,  in  Wigmore,  op.  tit.,  463-465. 

10  Rules  and  Regulations  Prescribed   by   tJie  President  for  Local   and 
District  Boards,  issued  by  the  Government  Printing  Office,  1917. 

11  Selective    Service   Regulations.     A    second    edition    of    these,    revised 
and  enlarged,  was  issued  Sept.  16,  1918,  in  which  was  included,  for  ex- 
ample, the  famous  "work  or  fight"  rules.     It  is  worthy  of  note  that  the 
Selective   Service   Act  itself   covers   only   8   pages;    while   the   Registration 
Regulations   constitute   a   pamphlet   of   30  pages,   the   Rules   and   Regula- 


170  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [170 

iate  supervision  of  the  Provost  Marshal  General  and,  finally,  of 
the  President,  who  was  empowered  to  ' '  affirm,  modify  or  reverse ' ' 
any  decisions  made  by  them.  It  is  thus  clear  that  while  the  ad- 
ministrative machinery  of  conscription  was  provided  for  and 
barely  outlined  by  statute,  its  creation,  supervision,  method  of 
operation,  and  control  were  in  the  hands  of  the  President. 

With  regard  to  the  field  of  general  administration,  no  addi- 
tional powers  of  importance  were  given  to  the  President  in  pre- 
vious wars,  beyond  his  ordinary  powers  of  supervision  and  direc- 
tion over  the  various  executive  departments  and  agencies.  On 
the  other  hand,  something  was  done  during  the  Civil  War  to 
provide  a  congressional  check  on  the  President's  administration 
of  the  war  through  the  committee  of  Congress  known  as  the  Joint 
Committee  on  the  Conduct  of  the  War.12 

The  nature  and  extent  of  the  recent  World  War,  however,  call- 
ed for  the  creation  of  numerous  new  administrative  agencies, 
and  it  is  worthy  of  note  that  Congress,  in  providing  for  these, 
in  almost  every  instance  gave  the  President  blanket  authority  to 
work  out  the  administrative  details  —  to  create  the  necessary  of- 
fices, to  prescribe  the  character  of  their  organization,  and  to  de- 
termine upon  the  administrative  methods  to  be  used.  Thus,  the 
Espionage  Act,  altho  providing  for  the  control  of  exports  from 
the  United  States,  created  no  administrative  agency  to  exercise 
such  control,  but  merely  specified  that  the  export  trade  be  car- 
ried on  "under  such  regulations  and  orders,  and  subject  to  such 
limitations  and  exceptions  as  the  President  shall  prescribe. ' ' 13 

Likewise,  the  Food  and  Fuel  Control  Act  set  up  no  admin- 
istrative machinery,  but  authorized  the  President  "to  make  such 

tions  for  Local  and  District  Boards  one  of  84  pages,  and  the  two  editions 
of  the  Selective  Service  Regulations  booklets  of  254  and  432  pages,  re- 
spectively. 

12  Hosmer,  The  Appeal  to  Arms,  80.  See  also  W.  W.  Pierson,  ' '  The 
Committee  on  the  Conduct  of  the  Civil  War,"  in  Am.  Hist.  Eev.,  XXIII, 
550-576  (Apr.,  1918).  During  the  recent  war,  an  attempt  was  made  to 
set  up  a  similar  committee.  The  Senate  added  a  provision  to  the  Food 
and  Fuel  Control  bill,  establishing  a  joint  committee  on  war  expenditures 
to  be  composed  of  5  Senators  and  5  Representatives,  "to  safeguard  the 
expenditure  of  the  appropriations  bearing  upon  the  war  as  made  by  Con- 
gress."  The  vigorous  protest  of  President  Wilson  against  the  embarrass- 
ment of  such  a  committee  forced  its  abandonment  in  conference.  Pol.  Sci. 
Quar.,  XXXII,  Supp.,  37,  38. 

is  Act  of  June  15,  1917  (Title  VII,  Sec.  1).  Wigmore,  op.  cit.,  493. 


171]  CONTROL  OF  ADMINISTRATION  171 

regulations  and  to  issue  such  orders  as  are  essential  effectively 
to  carry  out  the  provisions  of  this  Act, ' '  and  further,  ' '  to  create 
and  use  any  agency  or  agencies,  .  . "  for  the  same  purpose.14 
The  Trading  with  the  Enemy  Act  provided  for  the  regulation 
and  control  of  trading  with  an  enemy  or  ally  of  enemy  and  of  the 
import  trade,  and  for  the  censorship  of  foreign  communications 
and  foreign-language  publications,  but  empowered  the  President 
to  "  exercise  any  power  or  authority  conferred  by  this  Act 
through  such  officer  or  officers  as  he  shall  direct ; " 15  while  the 
Kailway  Control  Act  provided,  ' '  That  the  President  may  execute 
any  of  the  powers  herein  and  heretofore  granted  him  with  rela- 
tion to  Federal  control  through  such  agencies  as  he  may  deter- 
mine .  .  ."16 

By  virtue  of  these  provisions,  President  Wilson  vested  the 
executive  administration  of  his  instructions  and  proclamations 
concerning  the  export  trade  in  the  Secretary  of  Commerce,  and 
established  an  Exports  Council,  composed  of  the  Secretaries  of 
State,  Agriculture,  and  Commerce,  and  the  Food  Administra- 
tor,17 ' '  to  direct  exports  in  such  a  way  that  they  will  go  first  and 
by  preference  where  they  are  most  needed  and  most  immediately 
needed,  and  temporarily  to  withhold  them,  if  necessary,  where 
they  can  best  be  spared. "  18  As  the  administrative  agencies  for 
carrying  out  the  purposes  of  food  and  fuel  control,  the  President 
created  the  Food  and  the  Fuel  Administrations  and  the  United 
States  Grain  Corporation;19  to  administer  the  provisions  of  the 
Trading  with  the  Enemy  Act  concerning  censorship  and  the  reg- 
ulation of  imports,  he  set  up  the  Censorship  Board  and  the  War 
Trade  Board  ;20  while  for  the  administration  of  the  railroads,  he 

i*  Act  of  Aug.  10,  1917  (Sees.  1,  2).     Wigmore,  op.  tit.,  504. 

is  Act  of  Oct.  6,  1917  (Sec.  5a).     Ibid.,  548. 

"Act  of  Mar.  21,  1918  (Sec.  8).  Ibid.,  580. 

IT  Executive  order  of  June  22,  1917.  Official  Bulletin,  June  26,  1917. 

18  Statement  of  President  Wilson.  Ibid.  By  executive  order  of  Aug. 
21,  1917,  the  Exports  Council  was  enlarged  by  adding  the  Chairman  of 
the  Shipping  Board,  and  continued  as  an  advisory  body;  but  superseded 
in  its  control  of  exports  by  the  Exports  Administrative  Board,  com- 
posed of  representatives  of  the  Secretaries  of  State,  Agriculture,  and 
Commerce,  the  Food  Administrator,  and  the  Shipping  Board.  Willoughby, 
Government  Organisation  in  War  Time  and  After,  128;  War  Cyclopedia 
(1st  ed.),  90. 

is  Infra,  204-208. 

20  Infra,  201,  210. 


172  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [172 

established  the  Railroad  Administration,  with  Secretary  of  the 
Treasury  McAdoo  as  Director  General  of  Railroads.21 

Of  all  the  important  administrative  agencies  established  dur- 
ing the  recent  war  to  carry  on  some  phase  of  war  activity,  very 
few  were  expressly  created  by  statute,22  Congress  thus  appar- 
ently recognizing  the  importance  of  entrusting  the  details  of  war 
administration  to  the  President.  On  the  other  hand,  several  war 
agencies,  such  as  the  Committee  on  Public  Information  and  the 
War  Industries  Board,  were  created  by  the  President  without 
authority  of  statute,  but  by  virtue  of  his  powers  as  Chief  Execu- 
tive and  Commander-in-Chief.23 

The  establishment  of  all  these  new  administrative  agencies  for 
the  carrying  on  of  particular  war  activities,  as  well  as  the  tre- 
mendous expansion  in  functions  and  personnel  of  the  depart- 
ments and  agencies  already  in  existence,  soon  raised  the  problem 
of  how  to  avoid  duplication  and  waste  and  provide  for  the  proper 
coordination  of  effort.  It  finally  came  to  a  point  where,  in  the 
words  of  Senator  Wads  worth  (New  York),  "It  must  be  appar- 
ent to  every  sensible  man  that  it  is  utterly  impossible  to  get  any 
teamwork  out  of  this  conglomeration  of  ambitious  and  scattered 
agencies,  official  and  unofficial,  unless  we  create  some  agency 
that  shall  guide  and  control  them  all  in  those  matters  in  which 
team  work  is  essential  for  the  accomplishment  of  great  results. ' ' 24 

This  general  feeling  culminated  in  a  proposal  by  Senator 
Chamberlain  (Oregon),  approved  by  the  Senate  Committee  on 
Military  Affairs,  for  a  war  cabinet,  to  be  composed  of  "three 
distinguished  citizens  of  demonstrated  ability,"  who  were  to  be 

21  Infra,  215-216. 

22  The  Alien  Property  Custodian  was  thus  created  by  law.     See  Trad- 
ing with  the  Enemy  Act  (Sec.  6).  Wigmore,  op.  tit.,  548-549.     See  infra, 
212-213.     Other   administrative   agencies   of   particular   importance   during 
the  war,  such  as  the  Council  of  National  Defense,  the  War  Bisk  Insur- 
ance Bureau,  and  the  Shipping  Board,  were  expressly  created  by  statute, 
but  before  the  United  States  entered  the  war  and  not  anticipating  that 
event.     For  the  account  of  the  work  of  the  first  two  of  these,  see  Wil- 
loughby,  Government  Organization  in  War  Time  and  After,  9-21,  339-351 ; 
for  that  of  the  Shipping  Board  in  relation  to  this  study,  infra,  217. 

23  Infra,  197-199,  211-212. 

24  Speech   in   U.   S.   Senate,  Feb.   5,   1918.   Cong.   Eecord,   65   Cong.,   2 
Sess.,    1809.      See   also   charts,   included   in   the    address,    showing   the   or- 
ganization   and    proposed    reorganization    of    the    war-making    machinery. 
Ibid..  1808-1810. 


173]  CONTROL  OP  ADMINISTRATION  173 

appointed  by  the  President  with  the  consent  of  the  Senate,  and 
through  whom  the  President  was  to  exercise  ' '  such  of  the  powers 
conferred  upon  him  by  the  Constitution  and  the  laws  of  the 
United  States,  as  are  hereinafter  mentioned  and  described." 
This  war  cabinet  was  to  have  complete  jurisdiction  and  authority 
to  initiate  plans  and  policies  for  the  prosecution  of  the  war;  to 
direct  and  procure  the  execution  of  these  plans  and  policies; 
and  "to  supervise,  coordinate,  direct,  and  control  the  functions 
and  agencies  of  the  Government,  in  so  far  as,  in  the  judgment  of 
the  war  cabinet,  it  may  be  necessary  or  advisable  so  to  do  for  the 
effectual  conduct  and  vigorous  prosecution  of  the  existing  war." 
The  war  cabinet  was  further  to  be  authorized  to  make  the  rules 
and  regulations  governing  its  own  procedure;  to  require  infor- 
mation from  and  utilize  the  services  of  any  or  all  executive  de- 
partments, agencies,  and  officials  of  the  United  States  and  of 
the  several  states ;  and  to  make  all  the  orders  and  decisions  neces- 
sary to  carry  out  these  provisions.  Besides  the  right  to  name  its 
members,  the  President  was  to  be  given  over  this  war  cabinet, 
only  a  very  limited  power  of  review.25 

The  bill  thus  proposed  to  confer  powers  under  which  this  new 
war  cabinet,  as  one  Senator  said,  "could  take  absolute  charge  of 
the  conduct  of  the  war.  The  President  would  not  have  the  au- 
thority to  initiate  or  formulate  any  plans  or  policies  for  its  prose- 
cution. His  power  as  Commander-in-Chief  would  be  destroyed. 
He  would  be  subject  to  the  orders  of  the  War  Cabinet."  28  Presi- 
dent Wilson  therefore  vigorously  opposed  this  proposal,  saying 
that  it  "would  involve  long  additional  delays  and  turn  our  ex- 
perience into  mere  lost  motion, ' ' 27  and  instead  he  secured  the 
introduction,  and  finally  the  passage,  of  a  bill  containing  his 
ideas  for  meeting  the  situation.28 

25  The  war  cabinet  bill  was  introduced  by  Senator  Chamberlain,  Jan. 
21,  1918.  See  text  of  bill  in  Cong.  Record,  65  Cong.,  2  Bess.,  1077-1078. 

28  Senator  Shields,  in  U.  S.  Senate,  Apr.  22,  1918.  Cong.  Record,  65 
Cong.,  2  Sess.,  5836. 

27  Statement  of  Jan.  21,  1918,  quoted  in  Am.  Pol.  Sri.  Rev.,  XII,  377 
(Aug.  1918). 

28  The   administration   bill   was   introduced  by   Senator   Overman,    Feb. 
6,   1918,  and   became   law  May  20,   1918.     Senator  Overman   stated   very 
frankly:      "The  bill  was  advocated  by  the  President  and  sent  to  me  by 
the  President,  and  I  have  no  hesitation  in  saying  so."  Cong.  Record,  65 
Cong.,  2  Sess.   (Apr.  3,  1918),  4883.     The  fight  between  the  advocates  of 


174  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [174 

This  so-called  Overman  Act  authorized  the  President  "for  the 
national  security  and  defense,  for  the  successful  prosecution  of 
the  war,  for  the  better  utilization  of  resources  and  industries,  and 
for  the  more  effective  administration  by  the  President  of  his  pow- 
ers as  Commander-in-Chief  of  the  land  and  naval  forces,"  to 
make  such  redistribution  of  functions  among  the  executive 
agencies  as  he  might  deem  necessary;  to  utilize,  coordinate,  or 
consolidate  any  existing  executive  or  administrative  agencies ;  to 
transfer  any  duties  or  powers,  together  with  any  portion  of  the 
personnel  and  equipment,  from  one  such  agency  to  another ;  and 
to  make  whatever  regulations  and  issue  whatever  orders  might 
be  necessary  to  carry  out  these  provisions.  The  President  was 
further  authorized  to  establish  an  executive  agency  for  exercis- 
ing such  control  over  the  production  of  aeroplanes  and  aircraft 
equipment  as  he  might  consider  advantageous.  He  had  no  pow- 
er, however,  to  abolish  any  bureau  or  eliminate  its  functions  al- 
together, but  was  authorized  to  make  such  recommendations  to 
Congress  in  that  regard  as  he  might  deem  proper.  Moreover, 
the  act  was  strictly  a  war  measure,  in  that  it  was  expressly  pro- 
vided that  the  authority  granted  was  to  be  exercised  "only  in 
matters  relating  to  the  conduct  of  the  present  war ; ' '  and  furth- 
er, that  the  act  was  to  remain  in  force  no  longer  than  "six  months 
after  the  termination  of  the  war  by  the  proclamation  of  the  treaty 
of  peace,"  all  executive  agencies  and  functions  at  that  time  re- 
verting to  their  former  status  under  existing  law.29 

The  President  was  thus,  by  the  terms  of  this  act,  given  com- 
plete control  over  the  administrative  machinery  of  the  nation  as 
used  for  the  purposes  of  the  war.30  The  act  met  with  consider- 
able opposition  as  an  unwarranted  and  dangerous  extension  of 
the  President's  power;31  while  at  least  one  distinguished  au- 
thority held  that  it  was  entirely  unnecessary,  claiming  that  the 

the  Overman  Bill  and  Senator  Chamberlain's  War-Cabinet  bill,  and  the 
probable  motives  behind  the  latter,  are  described  by  J.  M.  Leake,  "The 
Conflict  over  Coordination,"  in  Am.  Pol.  Sci.  Sev.,  XII,  365-380  (Aug., 
1918). 

29  See  text  of  act  in  Wigmore,  op.  cit.,  586-587. 

30  See   an   excellent  summary  by   Senator   Fletcher   of   what  might  be 
accomplished  under  this  act.   Cong.  Record,   65  Cong.,  2  Sess.    (Apr.  22, 
1918),  5842. 

81  Especially  from  Senators  Cummins  (Bep.),  and  Eeed  and  Hoke 
Smith  (Dems.). 


175]  CONTROL  OF  ADMINISTRATION  175 

President  already  had  full  constitutional  power  to  make  such 
transfers  of  functions  and  consolidations  of  agencies  on  his  own 
initiative.  "I  think,"  said  this  former  Attorney-General  and 
Secretary  of  State,  "the  President  has  the  authority  to  require 
every  executive  officer  and  every  department  of  the  Government 
to  do  anything  that  he  directs  to  be  done  in  order  to  prosecute 
this  war  to  a  successful  conclusion.  I  think  he  has  the  power  to 
delegate  from  one  Cabinet  officer  to  another  the  discharge  of  any 
particular  duty  that  he  thinks  such  a  Cabinet  officer  can  dis- 
charge better  than  the  one  upon  whom  it  would  normally  be  in- 
cumbent. I  do  certainly  think  that  the  President  has  all  those 
powers.  .  .  As  I  have  read  the  Overman  bill,  in  so  far  as  it 
proposes  to  authorize  the  President  to  utilize  and  coordinate  ex- 
ecutive agencies,  .  .  I  would  not  hesitate  a  second  to  advise 
the  President  of  the  United  States  that  he  now  possesses  that 
power. ' ' 32 

The  majority  in  Congress  felt,  however,  that  the  act  was 
not  only  justified  in  order  to  avoid  the  suspicion  or  necessity  of 
the  President  setting  himself  up  as  a  dictator  and  doing  the  same 
things  without  definite  authority  of  law,33  but  also  that  it  was 
necessary  to  secure  the  proper  coordination  of  effort  on  the  part 
of  the  agencies  entrusted  with  carrying  on  the  various  war  ac- 
tivities of  the  government,  and  was  not  to  be  considered  as  war- 
ranting any  abuse  of  power  by  the  President.34 

32  Senator  Knox  (Rep.),  in  IT.  S.  Senate,  Apr.  3,  1918.  Cong.,  Record, 
65  Cong.,  2  Sess.,  4898;  see  also  ibid.,  4903.  A  well  known  journal  also  held 
that  the  President's  power  over  administration  was  practically  absolute, 
and  that  if  he  had  exercised  this  power,  it  would  probably  not  have  been 
questioned  in  Congress  or  by  public  opinion.     It  said,  however,  that  the 
Overman  Act  "would  dramatize  the  President's  powers  so  effectively  that 
no  one  could  question  them."  The  Nation,  May  4,  1918. 

33  See  Senator  Harding 's  suggestion  concerning  the  need  of  a  dictator. 
Supra,  ch.  I,  note  29.  Senator  Overman  frequently  emphasized  the  point 
that  instead  of  exercising  questionable  powers  without  authority  of  law, 
as  was  done  by  President  Lincoln,  President  Wilson  had  been  careful  to 
ask  Congress  for  specific  authority  to  exercise  such  necessary  powers. 

34  Senator    Nelson    (Rep.)    probably    best    expressed    the    sentiment    of 
the  majority  when  he  said:   "This  opposition  is  founded  on  the  assump- 
tion that  the  President  from  first  to  last  will  do  nothing  but  wrong;  that 
he  will  discontinue  and  dismantle  all  the  departments  instead  of  the  proper 
assumption  that  he  will  utilize  them  to  the  best  of  his  ability  to  carry 
on   the   war   successfully.     .     .     In   order  to   carry   on   the   transportation 


176  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [176 

Moreover,  there  were  several  precedents  for  granting  such  au- 
thority as  was  done  by  the  Overman  Act.  An  act  of  February 
14,  1903,35  had  authorized  the  President  "to  transfer  at  any  time 
the  whole  or  any  part  of  any  office,  bureau,  division,  or  other 
branch  of  the  public  service  engaged  in  statistical  or  scientific 
work  from  the  Department  of  State,  the  Department  of  the  Treas- 
ury, the  Department  of  War,  the  Department  of  Justice,  the  Post 
Office  Department,  the  Department  of  the  Navy,  or  the  Depart- 
ment of  the  Interior,  to  the  Department  of  Commerce  and  La- 
bor." The  Act  of  April  28,  1908,36  authorized  the  President 
"for  any  special  occasion"  to  transfer  to  the  head  of  another 
department  certain  authority  conferred  upon  the  Secretary  of 
Commerce ;  the  Act  of  June  24,  1910,37  authorized  the  Secretary 
of  the  Navy,  with  the  approval  of  the  President,  to  transfer  the 
duties  of  the  Bureau  of  Equipment  to  the  other  bureaus  and  of- 
fices of  the  Navy  Department  ' '  in  such  manner  as  the  Secretary 
of  the  Navy  shall  consider  expedient  and  proper ; ' '  while  by  the 
Act  of  March  3,  1917,38  the  Bureau  of  Efficiency  was  required  to 
investigate  duplication  of  service  in  the  various  executive  depart- 
ments and  establishments  of  the  Government  and  make  a  report 
to  the  President,  who  was  authorized,  "after  such  report  shall 
have  been  made  to  him,  whenever  he  finds  such  duplications  do 
exist,  to  abolish  the  same."  Apparently  there  was  no  exercise 
of  the  power  authorized  by  this  last-mentioned  act,  for  the  rea- 
son that  the  Bureau  of  Efficiency  was  employed  during  the  war 
to  devise  a  system  for  the  work  of  the  War-Risk  Insurance  Bu- 
reau and  hence  had  never  been  able  to  make  the  required  report 
to  the  President.39 

In  addition  to  the  statutes  above  mentioned,  others  have  been 
passed  applicable  to  emergencies  only,  under  which  the  Presi- 
dent is  authorized  at  such  times  to  transfer  important  functions 
and  services.  Thus  he  is  empowered,  in  time  of  threatened  or 

of  food  and  supplies  to  Europe  it  is  necessary  to  have  all  these  branches 
of  the  Government  function  and  work  together.  That  is  all  there  is  in 
this  bill,  and  there  is  no  use  of  slandering  it. ' '  Cong.  Record,  65  Cong., 
2  Sess.  (Apr.  3,  1918),  4886. 

3532  Stat.  at  L.,  830  (sec.  12). 

3635  ibid.,  69  (sec.  3). 

37  36  ibid.,  613. 

3839  ibid.,  1122  (sec.  8). 

39  See  Cong.  Eecord,  65  Cong.,  2  Sess.   (Apr.  3,  1918),  4891. 


177]  CONTROL  OP  ADMINISTRATION  177 

actual  war,  to  utilize  the  Public  Health  and  Marine  Hospital 
Service  "to  such  extent  and  in  such  manner  as  shall,  in  his  judg- 
ment, promote  the  public  interest;"  the  Coast  Guard,  ordinarily 
a  branch  of  the  Treasury  Department,  may  be  transferred  to  the 
Navy,  "in  time  of  war  or  when  the  President  shall  so  direct;" 
and  the  vessels,  equipment,  stations,  and  personnel  of  the  Light- 
house Service  and  the  Coast  and  Geodetic  Survey  are  subject  to 
transfer  by  the  President  to  either  the  War  or  Navy  Department, 
"whenever  in  his  judgment  a  sufficient  national  emergency 
exists."  Numerous  acts  relating  to  transfers  of  employees  and 
officials  within  the  Civil  Service  have  long  been  on  the  statute- 
books  ;  so  also  regarding  the  detail  of  military  and  naval  officers 
to  service  with  other  departments  or  agencies.40 

The  Overman  Act,  while  going  considerably  further  in  its 
grant  of  power  than  anything  before  enacted,  was  therefore  not 
entirely  novel  in  its  essential  principles,  especially  when  consid- 
ered as  a  purely  war-time  measure.  Its  passage,  however,  arous- 
ed considerable  speculation  as  to  the  probable  action  of  the  Presi- 
dent under  its  authority.  Suggestions  were  thrown  out  of  pos- 
sible radical  changes,  such  as  the  setting  up  of  a  "War  Super- 
Cabinet"  or  war  council,  to  consist  of  such  Cabinet  members 
and  heads  of  newly  established  bureaus  as  were  more  immediately 
concerned  with  the  conduct  of  the  war.  Others  did  not  look  for 
any  great  changes,  holding  that  the  Overman  Act  was  to  be  con- 
sidered "more  as  a  resource,  to  be  ready  at  hand  as  need 
arises,  .  .  .  more  as  a  club  than  anything  else,  to  bring 
about  better  team  work,  and  thus  to  increase  efficiency. ' ' 41 

As  a  matter  of  fact,  no  startling  changes,  transfers,  or  con- 
solidations were  made  by  the  President  as  a  result  of  the  Over- 
man Act,  and  in  no  way  was  the  regular  Cabinet  superseded,  or 
the  position  of  any  of  the  executive  departments  in  the  field  of 
administration  impaired.  President  Wilson's  first  order  under 
the  authority  of  this  act,  issued  on  the  very  day  the  act  went  into 
effect,  was  perhaps  one  of  the  most  important.  This  order  pro- 
vided for  the  reorganization  of  the  Air  Service,  which,  as  a  part 
of  the  Signal  Corps  of  the  Army,  had  up  to  this  time  been  under 
the  direction  of  the  Chief  Signal  Officer. 

40  See  complete  list  of  such  acts  in  Cong.  Record,  65  Cong.,  2  Sess.  (Apr. 
3,  1918),  4901. 

41  See  article  in  N.  Y.  Times,  May  5,  1918. 


178  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [178 

The  powers  and  functions  of  that  officer  were  now  redistribut- 
ed as  follows:  (1)  The  Chief  Signal  Officer  was  left  in  charge 
of  telegraph  and  telephone  operations.  (2)  A  Director  of  Mili- 
tary Aeronautics  was  created  and  placed  in  charge  of  the  Avia- 
tion Section  of  the  Signal  Corps,  with  the  duty  of  "operating 
and  maintaining  or  supervising  the  operation  and  maintenance 
of  all  military  aircraft,  .  .  .  and  of  training  officers,  en- 
listed men,  and  candidates  for  aviation  service  in  matters  per- 
taining to  military  aviation ; ' '  and  to  that  end  there  was  trans- 
ferred to  his  jurisdiction  every  function,  power,  and  duty  of  the 
Chief  Signal  Officer  in  reference  to  such  military  aviation,  as 
also  all  property  and  personnel  used  in  connection  with  that  ser- 
vice. (3)  A  Bureau  of  Aircraft  Production  was  established  as 
an  executive  agency  to  exercise  complete  jurisdiction  and  con- 
trol over  the  production  of  aircraft  and  aircraft  equipment,  with 
the  Chairman  of  the  Aircraft  Board  (which  had  been  created  by 
the  Act  of  October  1,  1917)  as  its  executive  officer.  He  was  now 
designated  the  Director  of  Aircraft  Production,  and  was  to  have 
complete  charge  of  the  activities,  personnel,  and  properties  of 
the  said  Bureau.42 

By  another  executive  order  of  May  28,  1918,  the  War  Indus- 
tries Board,  which  had  been  originally  formed  as  one  of  the  ad- 
visory committees  of  the  Council  of  National  Defense,43  was  es- 
tablished as  a  separate  administrative  agency  to  act  for  the 
President  and  under  his  direction.  The  functions,  duties,  and 
powers  of  the  board  were  by  this  order  continued  as  they  had 
been  outlined  by  the  President  in  his  letter  of  March  4,  1918,  to 
the  chairman,  Bernard  M.  Baruch  ;44  and  in  its  new  capacity  the 
War  Industries  Board  became  one  of  the  most  important  fac- 
tors in  coordinating  the  industrial  resources  of  the  nation  and 
thus  contributing  to  the  successful  conclusion  of  the  war. 

The  war  having  been  won,  President  Wilson  ordered  the  War 
Industries  Board  to  be  dissolved  January  1,  1919,  and  certain  of 
its  functions  transferred  to  other  executive  agencies.  Thus  the 
powers  and  functions  of  the  Division  of  Planning  and  Statistics 

42  Executive  order  of  May  20,  1918.     Official  Bulletin,  May  21,   1918. 

43  Under  authority  of  the  Army  Appropriations  Act  of  Aug.  29,  1916. 
U.  8.  Stats.,  64  Cong.,  1  Sess.,  619,  650. 

44  Official  Bulletin,  May  31,  1918.  For  the  letter  referred  to  as  out- 
lining the  functions  of  the  board,  see  ibid.,  Mar.  31,  1918. 


179]  CONTROL  OF  ADMINISTRATION  179 

were  transferred  to  the  War  Trade  Board,  as  also  the  powers 
of  the  War  Industries  Board  with  respect  to  any  orders,  direc- 
tions, regulations,  or  functions  that  could  not,  in  the  opinion  of 
the  chairman,  be  abrogated,  complied  with,  or  fulfilled  by  the  1st 
of  January;  while  those  of  the  Wool  Division  were  transferred 
to  the  Bureau  of  Markets  in  the  Department  of  Agriculture.  The 
powers  and  functions  of  the  Price  Fixing  Committee  were  order- 
ed to  continue  until  the  prices  fixed  by  the  committee  should 
have  expired,  whereupon  all  the  papers  and  records  should  be 
delivered  to  the  liquidating  officer  of  the  War  Industries  Board, 
and  the  committee  should  stand  dissolved.  The  order  further 
specified  that  the  War  Industries  Board,  or  any  number  of  its 
members  and  officials  might  be  continued  for  a  limited  period 
after  January  1st,  if  the  chairman  found  that  to  be  necessary  for 
the  proper  performance  of  any  duty  entrusted  to  him  or  to  the 
board,  but  only  for  the  purpose  of  performing  that  duty  and 
liquidating  the  affairs  of  the  board.45 

Other  particularly  important  orders  issued  under  the  Overman 
Act  were  those  affecting  the  natural  resources  of  the  country. 
Thus,  by  executive  order  of  July  3,  1918,  the  records,  personnel, 
and  powers  of  the  Federal  Trade  Commission  relating  to  the  pro- 
duction and  distribution  of  coal  and  coke  were  taken  from  that 
body  and  transferred  to  the  Fuel  Administration.46  By  another 
order  of  July  31,  1918,  the  President  likewise  placed  the  control 
of  the  petroleum  supply  in  the  hands  of  the  Fuel  Administrator, 
directing,  however,  that  such  control  should  be  exercised  through 
a  Committee  on  Standardization  of  Petroleum  Specifications,  the 
composition  of  which  was  prescribed  in  the  order.47  Of  a  similar 

«s  Executive  order  of  Dec.  31,  1918.  Official  U.  S.  Bulletin,  Jan.  29, 
1919.  While  this  executive  order  dissolving  the  War  Industries  Board 
was  specifically  based  on  the  Overman  Act,  the  order  of  May  28,  1918, 
establishing  that  board  as  an  administrative  agency  contained  no  reference 
to  that  act  or  any  other  statute,  tho  that  authority  was  evidently 
presumed.  Another  executive  order  apparently  issued  under  authority  of 
the  Overman  Act,  but  making  no  specific  reference  to  it,  was  that  of 
June  25,  1918,  transferring  the  gas  experiment  station  at  American  Uni- 
versity (Washington,  D.  C.)  from  the  jurisdiction  of  the  Bureau  of 
Mines  to  that  of  the  War  Department.  Official  Bulletin,  June  28,  1918. 

«  Ibid.,  July  10,  1918. 

"Ibid.,  Aug.  7,  1918.  This  committee  was  to  be  composed  of  7  mem- 
bers, as  follows:  a  chairman  appointed  by  the  Fuel  Administrator,  one 


180  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [180 

nature  was  a  later  order  conferring  the  control  of  the  mineral 
resources  of  the  country  upon  the  Secretary  of  the  Interior.48 

Numerous  other  executive  orders  were  issued  under  the  au- 
thority of  the  Overman  Act,  transferring  and  coordinating  va- 
rious functions  and  services.  On  May  31st,  all  the  law  officers 
of  the  government  were  ordered  to  "exercise  their  functions  un- 
der the  supervision  and  control  of  the  head  of  the  Department 
of  Justice,"  excepting  only  those  officers  in  the  Philippines,  the 
Comptroller  of  the  Treasury,  and  the  Judge  Advocates  General 
of  the  Army  and  Navy;49  on  June  18th,  the  war  housing  activ- 
ities were  placed  under  the  control  of  the  Secretary  of  Labor ; 50 
and  on  July  1st,  all  the  sanitary  and  public  health  services  were 
concentrated  under  the  supervision  of  the  Secretary  of  the  Treas- 
ury, excepting  those  health  functions  military  in  character,  ex- 
ercised by  the  Surgeons  General  of  the  Army  and  Navy  and  by 
the  Provost  Marshal  General.51 

Finally,  to  show  the  great  variety  in  the  actions  taken  under 
the  Overman  Act,  mention  may  be  made  of  the  executive  order 
of  October  3,  1918,  transferring  $120,000  from  the  appropriation 
of  $1,620,000  for  the  censorship  of  foreign  mails  under  the  Post 
Office  Department,  and  allotting  that  amount  to  the  Secretary 
of  War  for  the  censorship  of  the  mails  in  the  Panama  Canal 
Zone  ;52  and  of  the  executive  order  of  October  22,  1918,  by  which 
the  President  tranferred  a  single  individual  (W.  F.  Sloan, 
of  the  Division  of  Program  and  Statistics)  from  the  Bureau 
of  Aircraft  Production  to  the  Post  Office  Department  for  such 
duties  as  might  be  assigned  to  him  by  the  Postmaster  General  in 
connection  with  the  control  and  operation  of  the  telegraph  and 
telephone  services.53 

The  excellent  results  of  the  "blanket  authority  "  thus  conferred 
on  the  President  with  regard  to  administration  in  time  of  war, 

member  appointed  by  the  Secretary  of  War,  one  by  the  Secretary  of  the 
Navy,  one  by  the  chairman  of  the  Shipping  Board,  one  by  the  Director 
General  of  Railroads,  one  by  the  Director  of  the  Bureau  of  Mines,  and  one 
by  the  Director  of  the  Bureau  of  Standards. 

48  Official  Bulletin,  Nov.  18,  1918. 

« Ibid.,  June  4,  1918. 

eo  Hid.,  June  20,  1918. 

si  Ibid.,  July  2,  1918. 

62  Ibid.,  Oct.  10,  1918. 

53  Ibid.,  Nov.  13,  1918. 


181]  CONTROL  OF  ADMINISTRATION  181 

may  be  considered  to  have  set  a  precedent  for  the  future,  which 
will  undoubtedly  be  followed  in  case  of  another  emergency.  As 
a  result,  therefore,  of  his  duty  to  administer  and  enforce  the 
laws,  of  his  power  to  nominate,  appoint,  and  dismiss  the  chief 
administrative  officers,  and  of  the  administrative  powers  confer- 
red by  statute,  it  may  fairly  be  said  that  the  President,  in  time 
of  war  especially,  "has  become  in  effect  the  administrator-in- 
chief  of  the  Government. ' ' 5* 


54  Cf.  Willoughby,   Government   Organization  in   War  Time  and  After, 
5-6. 


CHAPTER  XI 

POWERS  OF  POLICE  CONTROL 

The  Bill  of  Rights  is  generally  considered  the  most  sacred  part 
of  the  Constitution,  especially  those  portions  of  it  guaranteeing 
freedom  of  speech,  of  the  press,  and  of  assembly ;  security  from 
arbitrary  arrest  and  deprivation  of  property ;  and  a  speedy  trial 
by  jury.1  One  of  the  most  important,  as  well  as  one  of  the 
most  perplexing  questions  that  arise  in  time  of  war  is  that  of  the 
extent  to  which  these  ordinary  civil  rights  of  the  individual  may 
be  restricted  in  the  interest  of  the  public  safety  and  the  na- 
tional defense.  Clearly  the  Constitution  is  not  merely  a  peace 
instrument,  but  was  intended  to  protect  the  individual  in  time 
of  war  as  in  time  of  peace.  The  doctrine  of  inter  armas  leges 
silent  can  have  no  place  in  a  constitutional  government  ;2  never- 
theless it  must  also  be  recognized  that  the  guaranty  of  civil  rights 
cannot  apply  in  the  same  fashion,  nor  to  the  same  extent,  in  time 
of  war  as  under  normal  conditions. 

One  distinguished  authority  says  that  "war  is  a  negation  of 

1  Amendments,  Arts.  I,  IV,  V,  VI. 

2  < '  The    Constitution    of   the    United    States    is    a   law    for    rulers    and 
people,   equally  in  war  and  in  peace,   and  covers  with  the  shield  of  its 
protection  all  classes  of  men,  at  all  times,  and  under  all  circumstances. 
No    doctrine,   involving   more    pernicious    consequences,    was   ever   invented 
by  the  wit  of  man  than  that  any  of  its  provisions  can  be  suspended  dur- 
ing  any   of  the   great   exigencies   of   government. ' '   Ex  parte  Milligan,  4 
Wall.,  2,  120-121   (1866).  However,  a  committee  of  the  N.  Y.  Bar  Asso- 
ciation, at  its  meeting  in  Jan.,  1917,  reported  as  follows :    "In  time  of 
war  the  laws  are  silent  j  during    the  war  civil  rights  may  be  suspended  at 
the  will  of  the   Commander-in-Chief.      The   Constituton   does  not  inure   to 
the   benefit   of   the   public   enemy,   of   spies,   or   of   enemy   sympathizers. ' ' 
This  position  was  severely  criticized  by  Dean  H.   W.   Ballantine,  of  the 
College  of  Law  in  the  University  of  Illinois,  in  an  article,  "The  Effect 
of   War    on    Constitutional    Liberty,"    in    Case    and    Comment,    XXIV,    3 
(June,  1917). 

182 


183]  POWERS  OF  POLICE  CONTROL  183 

civil  rights,"  and  holds  that  in  its  control  over  the  life,  liberty, 
and  property  of  those  whom  it  recognizes  as  public  enemies,  Con- 
gress is  limited  "only  by  the  dictates  of  humanity  and  a  respect 
for  the  practice  of  nations. ' ' 3  Another  writer  contends  that  the 
amendments  guaranteeing  these  rights  were  intended  "  as  dec- 
larations of  the  rights  of  peaceful  and  loyal  citizens,  and  safe- 
guards in  the  administration  of  justice  by  the  civil  tribunals ;  but 
it  was  necessary,  in  order  to  give  the  government  the  means  of 
defending  itself  against  domestic  or  foreign  enemies,  to  maintain 
its  authority  and  dignity,  and  to  enforce  obedience  to  its  laws, 
that  it  should  have  unlimited  war  powers;  and  it  must  not  be 
forgotten  that  the  same  authority  which  provides  those  safeguards 
and  guarantees  those  rights,  also  imposes  upon  the  President  and 
Congress  the  duty  of  so  carrying  on  war  as  of  necessity  to  super- 
sede and  hold  in  temporary  suspense  such  civil  rights  as  may 
prove  inconsistent  with  the  complete  and  effectual  exercise  of 
such  war  powers  and  of  the  belligerent  rights  resulting  from 
them.  .  .  The  rights  enjoyed  under  the  constitution  in  time 
of  peace  are  different  from  those  to  which  he  is  entitled  in  time 
of  war."4 

Even  if  we  do  not  fully  accept  the  contention  of  these  writers 
that  civil  rights  may  be  suspended  in  time  of  war,  still  it  would 
seem  to  be  apparent  that  at  such  a  time  these  rights  must  be 
subject  to  some  modification,  restriction,  or  at  least,  very  care- 
ful supervision,  in  order  that  the  government  may  contend  suc- 
cessfully with  sedition  and  disloyalty  from  within  as  well  as 
against  the  enemy  without;  the  principle  justifying  this  view 
being  that  the  rights  of  the  individual  must  yield  to  those  of  the 
state  in  the  time  of  the  state 's  peril  from  a  public  enemy.6  Hence 
there  have  been  developed  what  may  be  called  the  police  powers 
of  the  President  in  time  of  war,  that  is,  the  powers  exercised  by 
him  in  restraining  and  controlling  the  actions  of  individuals, 

3  W.  A.  Dunning,  in  Pol.  Sci.  Quar.,  I,  178. 

*  Whiting,  War  Powers  under  the  Constitution,  51.  But  in  his  dissent- 
ing opinion  in  the  recent  case  of  Abrams  v.  United  States,  Justice  Holmes 
declared  that  the  right  of  free  speech  is  the  same  in  war  as  in  peace,  say- 
ing, "It  is  only  the  present  dangers  of  immediate  evil  or  an  intent  to 
bring  it  about  that  warrants  Congress  in  setting  a  limit  to  the  expression 
of  opinion  where  private  rights  are  not  concerned."  250  U.  S.,  616 
(1919). 

5  Cf.  Glenn,  The  Army  and  the  Law,  144. 


184  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [184 

whether  they  be  citizens  or  aliens,  within  the  limits  of  the  coun- 
try, during  a  period  of  war  or  similar  emergency.    • 

The  relation  of  this  war  power  to  the  rights  of  enemy  aliens 
who  are  found  within  the  country  after  the  outbreak  of  a  war 
is  comparatively  simple.  International  law  from  its  very  begin- 
ning recognized  the  right  of  a  state  to  arrest  such  enemy  aliens 
immediately  upon  the  outbreak  of  war  and  detain  them  as  cap- 
tives during  the  period  of  hostilities.  Later  long-continued  prac- 
tise brought  about  the  rule  that  a  reasonable  time  for  departure 
should  be  given  before  arrest,  developing  finally  into  the  rule 
that  such  aliens  should  be  permitted  to  remain  during  the  entire 
period  of  the  war,  unless  military  considerations  required  their 
expulsion.6  The  right  to  arrest  or  otherwise  restrict  and  govern 
the  conduct  of  enemy  aliens,  has,  however,  never  been  formally 
abandoned,  and  was  indeed  revived  on  a  wholesale  scale  by  each 
belligerent  during  the  recent  World  War. 

In  the  United  States,  the  right  of  a  state  under  international 
law  thus  to  regulate  and  restrict  the  conduct  and  movements  of 
enemy  aliens  has  been  definitely  vested  in  the  President.  An 
act  of  Congress  passed  nearly  a  century  and  a  quarter  ago,7 
designated  as  alien  enemies  all  male  natives,  citizens,  denizens, 
or  subjects  of  a  hostile  nation  or  government,  who  were  at  least 
fourteen  years  of  age  and  not  actually  naturalized;  and  in  1918 
the  scope  of  this  act  was  enlarged  so  as  to  include  women.8  The 
President,  by  virtue  of  these  acts,  is  authorized  to  direct  the  con- 
duct to  be  observed  on  the  part  of  the  United  States  towards  these 
enemy  aliens,  the  manner  and  degree  of  the  restraint  to  which 
they  shall  be  subject,  and  in  what  cases  and  upon  what  security 
their  continued  residence  in  the  United  States  may  be  permit- 
ted; to  provide  for  the  removal  of  those  who  are  not  to  be  per- 
mitted to  remain;  and  "to  establish  any  other  regulations  which 
shall  be  found  necessary  in  the  premises  for  tiie  public  safety." 
In  case  of  removal  being  ordered,  the  President  is  further  au- 
thorized, at  his  discretion,  to  give  such  reasonable  time  for  de- 

6  Lawrence,    Principles    of    International    Law,    387-389 ;    Hershey,    Es- 
sentials of  International  Public  Law,  362. 

7  Act  of  July  6,  1798.    Annals  of  Cong.,  5  Cong.,  Ill,  App.,  3753;    U.  8. 
Sev.  Stats.,  sees.  4067-4070. 

8Act  of  Apr.  16,  1918.  U.  S.  Stats.,  65  Cong.,  2  Sess.,  531. 


185]  POWERS  OF  POLICE  CONTROL  185 

parture  "as  may  be  consistent  with  the  public  safety,  and  ac- 
cording to  the  dictates  of  humanity  and  national  hospitality. ' ' 

In  other  words,  the  President  is,  impliedly  by  the  rules  of 
international  law  and  expressly  by  statute,  vested  with  full  pow- 
er to  restrict  and  control  the  conduct  and  movements  of  alien 
enemies  as  he  may  see  fit.  He  may  permit  them  to  stay  in  the 
United  States  during  the  course  of  a  war,  with  such  restrictions 
upon  their  conduct  as  he  may  deem  proper,  or  with  no  restric- 
tions; he  may  order  them  to  depart  from  the  country,  and  if 
they  refuse  or  neglect  to  go,  may  compel  their  removal;  or  he 
may  arrest  and  intern  them  for  the  period  of  the  war.  His  ac- 
tions under  these  powers  are  final,  and  in  no  way  subject  to  ju- 
dicial review.9 

Until  recently  little  use  seems  to  have  been  made  of  this  pow- 
er. During  the  war  of  1812,  aliens  were  ordered  to  report  their 
names  and  obtain  ' '  certificates ' '  once  a  month.10  Otherwise  they 
have  apparently  been  permitted  to  remain  in  the  United  States 
with  no  harrassing  regulations  governing  their  conduct  and 
movements.  During  the  recent  war  with  Germany  and  Austria- 
Hungary,  however,  the  magnitude  of  the  struggle,  involving  as 
it  did  practically  every  resource  and  industry  of  the  nation,  and 
the  great  number  of  citizens  or  subjects  of  those  countries  resi- 
dent in  the  United  States,  made  the  danger  from  such  enemy 
aliens  considerably  more  serious  than  ever  before. 

President  Wilson,  acting  under  the  authority  of  the  Act  of 
1798,  therefore  took  precautionary  measures  immediately  upon 
the  entry  of  the  United  States  into  the  war,  and  in  the  very 
same  proclamation  announcing  the  existence  of  a  state  of  war,11 
he  established  a  set  of  twelve  regulations  governing  the  conduct 
of  such  enemy  aliens  within  the  United  States.  Under  these  regu- 
lations, the  possession  by  enemy  aliens  of  any  sort  of  fire-arm 
or  signal  apparatus  was  prohibited;  a  barred  zone  was  created 
around  every  fort,  arsenal,  and  other  government  property;  at- 
tacks or  threats  of  any  sort  against  the  government,  its  meas- 
ures, policies,  or  personnel,  were  not  allowed;  their  residence 
within  any  prohibited  area  that  might  be  designated  by  the  Presi- 

8  Glenn,  The  Army  and  the  Law,  87. 

10  Life  and  Works  of  John  Adams,  X,  42. 

11  Proclamation  of  Apr.  6,  1917.  U.  S.  Stats.,  65  Cong.,  1  Sess.,  Procs., 
6. 


186  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [186 

dent  was  not  permitted ;  their  departure  from  and  entry  into  the 
United  States  was  allowed  only  under  such  restrictions  as  the 
President  might  prescribe;  hostile  acts,  or  acts  giving  "infor- 
mation, aid,  or  comfort ' '  to  the  enemy  were  of  course  forbidden ; 
and  they  were  subject,  upon  suspicion,  to  summary  arrest  and 
internment. 

These  regulations  of  April  6,  were  supplemented  by  eight  ad- 
ditional regulations  established  in  the  proclamation  of  November 
16,  1917, 12  which  absolutely  excluded  enemy  aliens  from  such 
regions  as  the  territorial  waters  of  the  United  States,  the  Dis- 
trict of  Columbia,  and  the  Panama  Canal  Zone;  required  them 
to  register ;  and  ordered  them  to  obey  such  restrictions  and  regu- 
lations upon  their  residence,  occupation,  and  travel,  as  the  At- 
torney General  might  make  from  time  to  time.  Upon  the  dec- 
laration of  war  against  Austria-Hungary,  the  scope  of  these  regu- 
lations was  extended  to  include  the  citizens  and  subjects  of  that 
country ; 13  and  finally,  to  include  the  alien  women  of  both  Ger- 
many and  Austria-Hungary.14 

While  the  Act  of  July  6,  1798,  supplemented  by  the  Act  of 
April  16,  1918,  therefore  conferred  extensive  powers  of  police 
control  upon  the  President,  there  can  be  no  question  but  that 
such  powers  are  strictly  in  line  with  the  accepted  rules  of  in- 
ternational practise,  and  even  without  these  statutes,  might  be 
said  to  have  been  vested  in  the  President  as  the  Chief  Executive 
and  as  Commander-in-Chief. 

Somewhat  more  doubtful  are  the  powers  conferred  by  the 
famous  Alien  Act  of  1798,15  which  was  passed  during  the  stress 
of  the  expected  war  with  France  and  applied  to  all  aliens,  wheth- 
er from  an  enemy  or  a  friendly  country.  By  the  provisions  of  this 
act,  the  President  was  authorized  to  order  out  of  the  country 
"such  aliens  as  he  shall  judge  dangerous  to  the  peace  and 
safety  of  the  United  States,  or  shall  have  reasonable  ground  to 

12  U.  S.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  72. 

is  Proclamation  of  Dec.  11,  1917.  Ibid.,  2  Sess.,  85. 

i*  Proclamation  of  Apr.  19,  1918.  Ibid.,  128.  On  Christmas  Day  of 
1918,  these  regulations  were  rescinded,  in  their  entirety  as  extended  to 
women,  and  also  as  applied  to  men,  excepting  only  the  restrictions  as  to 
departure  from  and  ertry  into  the  United  States.  Proclamation  of  Dee. 
23,  1918.  Ibid.,  3  Sess.,  274.  This  proclamation  is  unique  in  being  done 
"at  the  city  of  Paris,  in  the  Republic  of  France." 

is  Act  of  June  25,  1798.  Annals  of  Cong.,  5  Cong.,  Ill,  App.,  3744. 


POWERS  OP  POLICE  CONTROL  187 

suspect  are  concerned  in  any  treasonable  or  secret  machinations 
against  the  Government  thereof. ' '  A  license  to  reside  within  the 
United  States  at  any  place  designated  by  the  President  might 
be  secured,  if  the  alien  concerned  could  prove,  "to  the  satisfac- 
tion of  the  President,"  that  he  was  not  dangerous  to  the  public 
safety;  but  any  alien  returning  to  the  United  States  after  his 
removal,  unless  by  permission  of  the  President,  was  to  be  inn- 
prisoned  "so  long  as,  in  the  opinion  of  the  President,  the  public 
safety  may  require." 

This  measure  thus  gave  the  President  practically  unlimited 
police  control  over  all  aliens  within  the  United  States.  Tho  en- 
acted during  a  time  of  technical  peace,  the  Alien  Act  was  de- 
signed (together  with  the  Sedition  Act)  as  a  war  measure,  "to 
afford  the  President  of  the  United  States  an  effective  weapon 
against  what  seemed  an  especially  pernicious  and  dangerous  form 
of  domestic  opposition  in  time  of  war."  16  A  great  many  of  the 
recently  admitted  foreigners  were  extreme  radicals  who  "ex- 
pressed their  opinions  by  speech  or  pen  with  a  venomous  facility 
that  has  few  counterparts  in  these  milder  times,"  condemned 
every  magistrate  in  power  in  the  United  States,  and  whose  out- 
pourings could  not  be  looked  upon  as  altogether  harmless.17 
There  might  even  be  said  to  have  been  a  precedent  for  the  Alien 
Act  in  a  similar  act  passed  in  Virginia  in  1785  and  reenacted  in 
1792,  but  which,  as  Madison  pointed  out,  differed  in  that  the  Vir- 
ginia act  expressly  applied  only  to  enemy  aliens  in  time  of  actual 
war.18 

The  powers  conferred  by  the  Alien  Act  were  upheld  as  a  legi- 
timate exercise  of  the  war  power,  in  the  report  of  a  House  com- 
mittee submitted  February  21,  1799,  as  follows:  "The  right  of 
removing  aliens,  as  an  incident  to  the  power  of  war  and  peace, 
according  to  the  theory  of  the  Constitution,  belongs  to  the  gov- 
ernment of  the  United  States.  .  .  Congress  is  required  to 

is  F.  M.  Anderson,  in  Eeport,  Am.  Hist.  Assn.  191$,  115.  "French 
spies  then  swarmed  in  our  cities  and  in  our  country;  some  of  them  were 
intolerably  impudent,  turbulent,  and  seditious.  To  check  them,  was 
the  design  of  the  law."  Adams  to  Jefferson,  June  14,  1813.  Life  and 
Works  of  John  Adams,  X,  42.  The  limitation  of  the  act  to  two  years  is 
also  an  indication  that  it  was  designed  purely  as  a  war  measure. 

"Channing,  History  of  the  United  States,  IV,  220. 

is  Writings  of  James  Madison,  VI,  369. 


188  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [188 

protect  each  state  from  invasion ;  and  it  is  vested  .  .  .  with 
powers  to  make  all  laws  which  shall  be  proper  to  carry  into  effect 
all  powers  vested  by  the  Constitution  in  the  government  of  the 
United  States,  or  in  any  department  or  officer  thereof;  and  to 
remove  from  the  country,  in  times  of  hostility,  dangerous  aliens, 
who  may  be  employed  in  preparing  the  way  for  invasion,  is  a 
measure  necessary  for  the  purpose  of  preventing  invasion,  and, 
of  course,  a  measure  that  Congress  is  empowered  to  adopt.  .  . 
Although  the  committee  believe  that  each  of  the  measures  adopt- 
ed by  Congress  [referring  also  to  the  Sedition  Act]  is  suscept- 
ible of  an  analytical  justification,  on  the  principles  of  the  Con- 
stitution and  national  policy,  yet  they  prefer  to  rest  their  vindi- 
cation on  the  true  ground  of  considering  them  as  parts  of  a  gen- 
eral system  of  defense  adapted  to  a  crisis  of  extraordinary  diffi- 
culty and  danger. ' ' 19  Even  the  bitterest  critics  of  the  Alien 
Act  questioned  its  constitutionality  only  as  it  applied  to  friendly 
aliens,  admitting  frankly  that  "the  removal  of  alien  enemies  is 
an  incident  to  the  power  of  war. ' ' 20 

Apparently  the  power  given  to  the  President  by  the  Alien 
Act  was  not  actually  exercised  in  a  single  instance ; 21  altho 
in  a  couple  of  cases  final  action  by  the  President  was  probably 
forestalled  only  by  the  voluntary  departure  of  the  person  con- 
cerned, and  a  considerable  number  of  foreigners  are  said  to  have 
left  the  country,  anticipating  the  enforcement  of  the  act.22  On 
the  whole,  it  is  probably  correct  to  say  that  this  law  was  "neith- 
er unjustifiable  in  purpose  nor  administered  with  special  harsh- 
ness. ' ' 23 

The  power  of  the  President  to  deal  summarily  with  citizens 
whom  he  may  consider  dangerous  to  the  public  safety  is  not  so 
clear.  The  provision  in  the  Constitution  permitting  the  sus- 
pension of  the  privilege  of  the  writ  of  habeas  corpus  "when  in 

is  Am.  State  Papers,  Misc.,  I,  182,  183;  Elliot's  Debates,  IV,  441. 

20  See  Madison 's  famous  Report  of  1800  on  the  Virginia  Resolutions. 
Writings  of  James  Madison,  VI,  366-367. 

21  Life  and  Works  of  John  Adams,  X,  42.  President  Adams,  in  at  least 
one  instance,  expressed  a  willingness  to  apply  the  act.  Ibid.,  IX,  5. 

22  See  article  by  F.  M.  Anderson,  ' '  The  Enforcement  of  the  Alien  and 
Sedition  Laws,"  in  Beport,  Am.  Hist.  Assn.  1912,  115-126,  esp.  116-117. 

23  Bascom,   Growth  of  Nationality  in  the   United  States,  24.    See  also 
Channing,  op.  oit.,  IV,  223-224. 


189]  POWERS  OF  POLICE  CONTROL  189 

cases  of  rebellion  or  invasion  the  public  safety  may  require  it, ' ' 24 
shows  that  the  taking  of  extraordinary  measures  in  cases  of  such 
emergency  was  clearly  recognized  as  necessary  and  proper.25 
Altho  the  Constitution  itself  does  not  expressly  state  by  what  au- 
thority the  privilege  of  the  writ  may  be  suspended,  it  had  been 
the  general  opinion,  up  to  the  time  of  the  Civil  War,  that  Con- 
gress alone  had  the  power  to  judge  of  the  exigency  requiring 
that  action.  This  opinion  had  been  induced,  not  only  by  the 
position  of  the  habeas  corpus  clause  in  that  part  of  the  Consti- 
tution devoted  to  the  legislative  department,28  but  also  by  pre- 
cedent,27 by  the  practise  under  the  Constitution,28  and  by  the 
weight  of  authority.29 

2*  Art.  I,  Sec.  9,  01.  2. 

25  There  was  some  objection  to  this  clause  at  the  time.  Thus  Jeffer- 
son in  a  letter  to  Madison,  July  31,  1788,  protested  as  follows:  "Why 
suspend  Hab.  Corp.  in  insurrections  &  rebellions?  ...  If  publick 
safety  requires  that  the  government  should  have  a  man  imprisoned  on 
less  probable  testimony  in  those  than  in  other  emergencies;  let  him  be 
taken  &  tried,  retaken  &  retried,  while  the  necessity  continues,  only 
giving  him  redress  against  the  government  for  damages.  Examine  the 
history  of  England.  See  how  few  of  the  cases  of  the  suspension  of  the 
Habeas  Corpus  law  have  been  worthy  of  that  suspension.  They  have 
been  either  real  treasons  wherein  the  parties  might  as  well  have  been 
charged  at  once,  or  sham  plots  where  it  was  shameful  they  should  ever 
have  been  suspected.  Yet  for  the  few  cases  wherein  the  suspension  of 
the  hab.  corp.  has  done  real  good,  that  operation  is  now  become  habit- 
ual, &  the  minds  of  the  nation  almost  prepared  to  live  under  its  con- 
stant suspension. ' '  Writings  of  Thomas  Jefferson,  V,  46-47. 

28  In  the  state  ratifying  conventions  it  was  taken  for  granted  that 
Congress  alone  could  suspend  the  writ.  The  following  amendment,  for 
example,  was  proposed  by  the  New  York  convention  of  1788:  "That  the 
privilege  of  the  habeas  corpus  shall  not,  by  any  law,  be  suspended  for  a 
longer  term  than  six  months,  or  until  twenty  days  after  the  meeting  of 
the  Congress  next  following  the  passing  of  the  act  for  such  suspension." 
Elliot's  Debates,  I,  330. 

27  In  England,  Parliament,  not  the  Crown,  suspends  the  writ. 

28  President    Jefferson's    message    of    Jan.    22,    1807,    on    Burr's    con- 
spiracy, was  followed  by  the  passage  in  the  Senate  of  a  bill  suspending 
the  writ  of  habeas  corpus  in  certain  cases  for  three  months.     In  the  House 
the  bill  was  rejected  by  an  overwhelming  majority.     Neither  in  the  mes- 
sage  of   the   President   nor   in   the   discussion   in   Congress   was   there   any 
suggestion   of   the    President's   right   to   exercise   that   power.   Annals   of 
Cong.,  9  Cong.,  2  Sess.,  39-43,  44,  402-425. 

29  Ex  parte  Bollman,  4  Cr.,  75,  101    (1807);    Story,  Commentaries  on 


190  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [190 

With  the  outbreak  of  the  Civil  War,  this  settled  opinion  was 
disregarded  by  President  Lincoln,  acting  on  his  own  initiative 
or  through  his  subordinates,  and  upon  the  advice  of  his  Attorney 
General.30  On  April  27,  1861,  he  authorized  General  Scott  to 
suspend  the  writ  of  habeas  corpus  by  the  following  order :  ' '  You 
are  engaged  in  suppressing  an  insurrection  against  the  laws  of 
the  United  States.  If  at  any  point  on  or  in  the  vicinity  of  any 
military  line  which  is  now  or  which  shall  be  used  between  the 
city  of  Philadelphia  and  the  city  of  Washington,  you  find  re- 
sistance which  renders  it  necessary  to  suspend  the  writ  of  habeas 
corpus  for  the  public  safety,  you  personally,  or  through  the  of- 
ficer in  command  at  the  point  at  which  resistance  occurs,  are 
authorized  to  suspend  that  writ. ' ' 31 

On  May  10,  the  President  by  proclamation  also  authorized  the 
commander  of  the  United  States  forces  on  the  coast  of  Florida, 
"if  he  shall  find  it  necessary,  to  suspend  the  writ  of  habeas  cor- 
pus and  to  remove  from  the  vicinity  of  the  United  States  for- 
tresses all  dangerous  or  suspected  persons ; " 32  on  June  20,  he 
directed  General  Scott  to  suspend  the  writ  in  the  case  of  a  single 
officer  charged  with  treason  ;33  on  July  2  and  October  14,  he  ex- 
tended his  order  of  April  27  to  cover  the  military  line  from 
Washington  to  Bangor,  Maine  ;34  and  on  December  2,  he  empow- 
ered General  Halleck  to  suspend  the  writ  at  his  discretion  in 
the  state  of  Missouri.35  Finally,  by  proclamation  of  September 
24,  1862,36  the  President  declared  that  all  persons  aiding  or  abet- 
ting the  rebellion,  discouraging  enlistments,  resisting  drafts,  or 
guilty  of  "disloyal  practices,"  should  be  subject  to  trial  by  court- 
martial  or  military  commission,  and  ordered  the  suspension  of 
the  writ  of  habeas  corpus  in  their  cases  —  a  proclamation  which 

the  Constitution,  II,  208.  Cf.  Chambrun,  The  Executive  Power,  241;  Win- 
throp,  Abridgment  of  Military  Law  (2nd  ed.),  330-331. 

so  Attorney  General  Bates,  July  5,  1861.  10  Op.  Atty.  Gen.,  74. 

si  Richardson,  Messages  and  Papers  of  the  Presidents,  VI,  18.  Only 
two  days  before,  Lincoln  declined  to  permit  Gen.  Scott  to  arrest  or  dis- 
perse members  of  the  Maryland  legislature  suspected  of  favoring  seces- 
sion, before  the  legislature  should  meet.  Ibid.,  17. 

32  Ibid.,  17. 

ss  Ibid.,  19. 

3*  Ibid.,  19,  39. 

so  Ibid.,  99. 

as  Ibid.,  98-99. 


191]  POWERS  OP  POLICE   CONTROL  191 

an  eminent  authority  has  characterized  as  "a  perfect  platform 
for  a  military  despotism."  37 

While  the  suspension  of  the  privilege  of  the  writ  of  habeas 
corpus  does  not  of  itself  authorize  arbitrary  arrests  or  any  un- 
usual procedure  in  trial,  it  has  that  practical  effect,  since  those 
suffering  arbitrary  arrest  would  have  no  remedy  to  prevent  the 
continuance  of  their  confinement  during  the  suspension  of  the 
writ.38  Arbitrary  arrests  were  made  from  the  very  beginning  of 
the  war.  Members  of  the  Maryland  legislature,  the  mayor  of 
Baltimore,  and  several  other  prominent  citizens  were  arrested 
by  order  of  the  Secretary  of  War,  in  order  to  prevent  the  pass- 
age  of  an  ordinance  of  secession.  Later,  wholesale  arrests  were 
made  all  over  the  country,  especially  in  the  West,  some  by  direct 
authority  of  the  President,39  some  by  order  of  the  Secretary  of 
State,  some  by  that  of  the  Secretary  of  War,  sometimes  merely 
by  virtue  of  a  simple  telegram,  and  in  no  case  with  the  warrant 
required  by  the  Constitution,  the  only  justification  being  that 
the  persons  so  arrested  were,  by  treasonable  speaking  and  writ- 
ing, giving  aid  and  comfort  to  the  enemy,  and  that  their  im- 
prisonment was  necessary  for  the  public  safety.40 

In  March,  1863,  Congress  expressly  authorized  the  President 
to  suspend  the  writ  of  habeas  corpus  and  legalized  his  past 

37  W.  A.  Dunning,  in  Pol.  Sri.  Quar.,  I,  188.  "Discouraging  enlist- 
ments and  disloyal  practices  were  offences  unknown  to  the  law,  and  the 
phrase  disloyal  practice  was  large  enough  to  include  anything."  8.  G. 
Fisher,  in  Pol.  Sci.  Quar.,  Ill,  457.  The  elastic  interpretation  of  the  lat- 
ter term  is  indicated  by  the  following  contemporary  definition:  "He  is 
a  public  enemy  who  seeks  falsely  to  exalt  the  motives,  character,  and 
capacity  of  armed  traitors,  to  magnify  their  resources,  to  encourage 
their  efforts  by  sowing  dissension  at  home,  or  by  inviting  intervention 
of  foreign  powers  in  our  affairs.  He  who  overrates  the  success,  increases 
the  confidence,  and  encourages  the  hopes  of  our  adversaries,  or  under- 
rates, diminishes,  or  weakens  our  own,  and  he  who  seeks  false  causes  of 
complaint  against  the  officers  of  our  government,  or  inflames  party  spirit 
among  ourselves,  .  .  .  gives  to  our  enemies  that  moral  support  which 
is  more  valuable  to  them  than  regiments  of  soldiers,  or  millions  of  dol- 
lars."  Whiting,  War  Powers  under  ihe  Constitution,  197-198. 

ss  Cf.  Burgess,  The  Civil  War  and  the  Constitution,  II,  216. 

39  See  Executive  order  of  Aug.  8,  1862.     Eichardson,  op.  tit.,  VI,  121. 

«  Rhodes,  History  of  the  United  States,  III,  553-556;  S.  G.  Fisher, 
"The  Suspension  of  Habeas  Corpus  during  the  War  of  the  Rebellion,"  in 
Pol.  Sci.  Quar.,  Ill,  454-488,  esp.  457. 


192  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [192 

acts,41  but  for  two  years  Lincoln  had  suspended  the  writ  of  his 
own  accord,  and  had  made  arrests  without  warrant,  holding  the 
suspects  as  long  as  he  pleased,42  not  only  without  express  author- 
ity and  contrary  to  the  prevailing  opinion  of  his  power  up  to 
the  time  of  the  Civil  War,  but  in  direct  oppostion  to  the  author- 
itative ruling  of  Chief  Justice  Taney.43  He  was,  however, 
clearly  supported  by  public  opinion,44  and  if  any  constitutional 
principle  can  be  deduced,  it  is  "that  the  President  may  in  an 
emergency  exercise  the  right  to  arrest  and  detain  individuals 
until  Congress  acts. ' ' 45  There  is  scarcely  any  doubt,  as  is  as- 
serted by  an  eminent  authority,  that  the  practises  of  the  admin- 
istration in  the  Civil  War  would  be  repeated  under  like  circum- 
stances, and  that  they  are  to  be  considered  as  the  precedents  of 
the  Constitution  rather  than  the  opinion  of  the  Supreme  Court.46 
With  regard  to  the  freedom  of  speech  and  press,  some  re- 
strictions on  both  have  always  been  considered  warranted  in  spite 
of  the  constitutional  guaranties,  even  in  time  of  peace.47  In  time 

41  Act  of  Mar.  3,  1863.  12  Stat.  at  L.,  755. 

42  By  executive  order  of  Feb.   14,  1862,  he  ordered  the  release  of  all 
political     prisoners  on  their  parole  to  render  no   aid  or  comfort  to  the 
enemies  of  the  United  States,  granting  annesty  for  their  past  disloyalty 
to  those  who  should  keep  their  parole,  and  declaring  that  ' '  extraordinary 
arrests  will  hereafter   be   made  under  the   direction   of  the   military   au- 
thorities alone."  Eichardson,  op.  tit.,  VI,  102-104. 

43  #£  parte  Merryman,  Fed.  Cases  No.  9487  (1861). 

44  Cf.  8.  G.  Fisher,  op.  cit.,  483. 

45  See  W.  A.  Dunning,  "The  Constitution  in  Civil  War,"  in  Pol.  Sri. 
Quar.,  I,  163-198,  esp.  189;   cf.  Bascom,  Growth  of  Nationality,  112-114. 
The  most  notable  assertion  of  the  President's  power  was  the  pamphlet  by 
Horace  Binney,  "The  Privilege  of  the  Writ  of  Habeas  Corpus  under  the 
Constitution,"   well   summarized  by   S.   G.    Fisher,  op.   tit.,   459-465.    For 
Lincoln's  own  defense  of  his  actions,  see  his  message  to  Congress,  July 
4,    1861,   and    his    replies   to    communications    from   New    York   and   Ohio 
Democrats,  June  12  and  June  29,  1863.     Eichardson,  op.  tit.,  VI,  25;  Mc- 
Pherson,  History  of  the  Eebellion,  163-167,  170-172. 

46  "  It  may  therefore  be  claimed  that  it  is  the  precedent  of  the  Con- 
stitution in  Civil  War  that  the  President  may  suspend  all  the  safeguards 
of   the   Constitution   in   behalf   of   personal   liberty   anywhere   within   the 
country,  taking  upon  himself  the  responsibility  therefor  to  Congress,  and 
that  subsequent  authorization  by  Congress  fo  do  the  like  things  in  future 
works  indemnification,  and  makes  the  preceding  Presidential  assumptions 
legitimate    and    lawful,    if    they    lacked    anything    of    being    so    before. ' ' 
Burgess,  The  Civil  War  and  the  Constitution,  II,  217. 

47  "What  is  the  liberty  of  the  press?     Who  can  give  it  any  definition 


193]  POWERS  OF  POLICE  CONTROL  193 

of  war,  these  may  be  considerably  extended  so  as  to  prevent  in- 
terference with  the  successful  prosecution  of  the  war  by  stirring 
up  disloyalty  or  sedition,  by  encouraging  disobedience  to  the 
laws,  or  by  giving  aid  or  comfort  to  the  enemy  in  any  way.48  In 
fact,  it  has  been  officially  asserted  that  the  freedom  of  the 
press  in  war  time  rests  largely  with  the  discretion  of  Congress.49 
Such  war  time  restrictions  may  take  the  form  of  penalizing 
certain  kinds  of  speech  or  writing.  This  was  the  nature  of  the 
famous  Sedition  Act  of  1798,50  which,  designed,  like  the  Alien 
Act  already  referred  to,  as  a  war  measure,51  attempted  to  curb 
the  spread  of  sedition  during  the  crisis  with  France  by  punishing 
false,  scandalous,  and  malicious  writings  against  the  Govern- 
ment, either  house  of  Congress,  or  the  President,  written  with 
intent  to  stir  up  sedition.  Of  a  similar  nature,  but  even  more 
clearly  designed  as  a  war  measure,  is  the  Espionage  Act  of 
1917,52  of  which  it  has  been  said  that  "few  more  sweeping  meas- 
ures have  ever  found  their  way  to  the  national  statute  book. ' ' 5S 

which  would  not  leave  the  utmost  latitude  for  evasion?  I  hold  it  to  be 
impracticable;  and  from  this,  I  infer  that  its  security,  whatever  fine 
declarations  may  be  inserted  in  any  constitution  respecting  it,  must  al- 
together depend  on  public  opinion  and  on  the  general  spirit  of  the  people 
and  of  the  government."  The  Federalist,  No.  84  (Goldwin  Smith  ed.,  p. 
476). 

48  In  its  decisions  upholding  the  constitutionality  of  the  Espionage 
Act  of  1917,  the  Supreme  Court  declared  that  the  first  amendment  affords 
no  protection  to  an  individual  convicted  under  that  act  for  printing  and 
distributing  in  time  of  war  a  document  calculated  to  cause  insubordination 
in  the  military  and  naval  forces  and  obstruction  to  recruiting;  that  it 
likewise  is  no  protection  against  conviction  for  publishing  and  circulating 
newsapers  or  articles  attempting  to  cause  disloyalty  and  mutiny;  and 
that  it  is  no  valid  defense  against  conviction  for  delivering  a  speech  op- 
posing the  war,  so  expressed  that  the  natural  effect  is  to  obstruct  re- 
cruiting. Schenclc  v.  United  States,  249  U.  S.,  47  (1919) ;  Frohwerk  v. 
United  States,  ibid.,  204;  Debs  v.  United  States,  ibid.,  211. 

«  War  Cyclopedia  (1st  ed.),  101. 

oo  Act  of  July  14,  1798.  Annals  of  Cong.,  5  Cong.,  Ill,  App.,  3776. 

si  See  report  of  House  Committee,  Feb.  21,  1799.  Am.  State  Papers, 
Misc.,  I,  182,  183.  That  the  act  was  designed  purely  as  an  emergency 
measure  is  further  indicated  by  the  fact  that  it  was  to  continue  in  effect 
only  until  Mar.  3,  1801. 

52  Act  of  June  15,  1917.  Public  No.  24,  65  Cong.,  in  Wigmore,  Source- 
Boole  of  Military  Law  and  War-Time  Legislation,  484-500. 

53  War  Cyclopedia  (1st  ed.),  88. 


194  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [194 

As  amended  in  1918,54  this  act  is  especially  stringent,  making 
it  a  penal  offense,  not  only  to  hinder  the  success  of  the  United 
States  and  promote  that  of  the  enemy  by  making  false  reports, 
by  inciting  or  attempting  to  incite  disloyalty  or  mutiny,  or  by 
obstructing  recruiting  and  enlistment,  but  also  to  "willfully 
utter,  print,  write,  or  publish  any  disloyal,  profane,  scurrilous, 
or  abusive  language  about  the  form  of  government  .  .  ,  or  the 
Constitution  .  .  ,  or  the  military  or  naval  forces  .  .  , 
or  the  flag  .  .  ,  or  the  uniform  of  the  Army  and  Navy  of  the 
United  States,"  or  any  language  intended  to  bring  these  into 
" contempt,  scorn,  contumely,  or  disrespect."  Through  his  con- 
stitutional power  to  "take  care  that  the  laws  be  faithfully  exe- 
cuted, ' '  it  was  of  course  largely  within  the  discretion  of  the  Presi- 
dent to  interpret  these  provisions  in  such  a  way  as  to  make  them 
instruments  of  oppression  or  genuine  attempts  to  suppress  dis- 
loyalty and  sedition.55 

Another  method  of  placing  war  time  restrictions  on  the  press 
is  through  censorship  in  advance  of  publication.  This  method 
is  largely  executive.  The  President,  as  Commander-in-Chief, 
has  the  undoubted  power  to  suppress  or  censor  such  newspapers 
or  other  publications  in  occupied  territory  as  he  may  deem  in- 
jurious to  the  public  interests.56  At  least  one  writer  asserts  that 
the  President  also  has  this  power  within  the  United  States  as  well. 
He  says  that  the  power  necessarily  exists  somewhere  to  prevent 
disclosures  useful  to  the  enemy,  should  such  disclosures  be  threat- 
ened or  undertaken,  and  maintains  that  "  it  is  of  the  very  essence 
of  all  things  which  lie  between  success  and  failure  in  war  that 
this  power  should  be  reposed  where  it  can  be  exercised  instantly, 
as  the  exigencies  of  the  situation  may  develop  the  need,"  and 
that  therefore  the  President  is  not  dependent  upon  Congress  in 
order  to  exercise  the  power  of  censorship,  but  has  the  right,  as 
Commander-in-Chief,  to  prevent  and  suppress  such  publications. 

5*  Act  of  May  16,  1918.  Public  No.  150,  65  Cong.,  in  Wigmore,  op.  tit., 
500-501. 

55  For  a  vigorous  criticism  of  these  Espionage  Acts  and  the  manner  of 
their  enforcement,  as  well  as  for  a  complete  discussion  of  the  subject  of 
the  freedom  of  speech  in  war  time,  see  Chaffee,  Freedom  of  Speech,  esp. 
chs.  1-2.  For  the  enforcement  of  the  Sedition  Act  of  1798,  see  F.  M.  An- 
derson, op.  cit.,  in  Report,  Am.  Hist.  Assn.  1912,  118-122.  For  opinion  as  to 
its  constitutionality,  see  Story,  Commentaries  on  the  Constitution,  II,  619,  n. 

5«  Dig.  Ops.  J.  A.  G.,  (ed.  1901),  426. 


195]  POWERS  OF  POLICE  CONTROL  195 

"To  deny  the  power  is  to  deny  the  right  of  the  Commander-in- 
chief  to  protect  his  armies  against  a  danger  as  obvious  as  would 
be  the  danger  of  allowing  armies  to  organize  and  drill  and  ac- 
cumulate arms  and  ammunition  behind  the  lines. ' ' 57 

This  power  of  censorship  was  both  asserted  and  exercised  dur- 
the  Civil  "War.  Postmaster  General  Blair  stated  it  as  his  opinion 
"that  a  power  and  duty  to  prevent  hostile  printed  matter  from 
reaching  the  enemy,  and  to  prevent  such  matter  from  instigating 
others  to  cooperate  with  the  enemy,  by  the  aid  of  the  United 
States  mails,  exist  in  time  of  war,  and  in  the  presence  of  treas- 
onable and  armed  enemies  of  the  United  States,  which  do  not 
exist  in  time  of  peace,  and  in  the  absence  of  criminal  organiza- 
tions ; " 58  which  view  was  sustained  in  a  report  of  a  committee 
of  Congress,59  and  a  way  thus  opened  for  placing  the  press  "at 
the  mercy  of  the  Government  in  time  of  war. ' ' 

In  accordance  with  these  views,  a  censorship  of  some  sort  exist- 
ed from  the  outset  of  the  war,  tho  it  was  apparently  never  very 
effective.  Government  control  of  the  telegraph  lines  was  estab- 
lished as  early  as  April,  1861,  and  a  censor  (H.  E.  Thayer)  was 
appointed,  with  instructions  from  Secretary  Seward  to  prevent 
the  issue  from  "Washington  of  telegraphic  messages  relating  to 
the  civil  or  military  operations  of  the  government,  containing 
anything  more  than  a  bare  statement  of  essential  facts.60  In  Au- 
gust of  the  same  year,  an  attempt  was  made  to  reach  a  "gentle- 
men's agreement"  between  the  government  and  the  press,  where- 
by the  newspapers  were  to  refrain  from  publishing  information 
giving  aid  or  comfort  to  the  enemy,  while  the  government  was  to 
afford  facilities  for  the  transmission  of  suitable  information. 

This  proved  to  be  a  failure,  due  to  the  unscrupulous  character 
of  some  correspondents  and  newspapers,  and  finally  resort  was 
had  to  an  administrative  policy  of  news  control.  The  censoring 

57  T.    J.    O  'Donnell,    ' '  Military    Censorship    and    the    Freedom    of   the 
Press,"  in  Va.  Law  Eev.,  V,  178-179. 

58  Quoted  in  Burgess,  op.  cit.,  II,  222-223. 

59  Report  of  House  Judiciary  Committee,  Jan.  20,  1863.  Ibid.,  223. 

eo  For  example,  no  mention  was  permitted  of  the  criticism  of  Gen.  Stone 
for  the  Ball's  Bluff  disaster;  nor  of  the  fact  that  some  senators  had 
urged  the  removal  of  Gen.  Sherman;  nor  of  the  Cabinet's  objections  to 
Secretary  Cameron's  report.  See  J.  G.  Randall,  "The  Newspaper  Prob- 
lem in  Its  Bearing  upon  Military  Secrecy  during  the  Civil  War,"  in 
Am.  Hist.  Eev.,  XXIII,  303-323,  esp.  303-304  (Jan.,  1918). 


196  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [196 

function  was  transferred  from  the  State  to  the  War  Department ; 
military  supervision  of  the  telegraph  lines  was  ordered  by  au- 
thority of  Congress,  beginning  in  February,  1862 ;  and  a  special 
officer  was  appointed  for  the  general  supervision  of  the  telegraph 
business,  with  the  title  of  Assistant  Secretary  of  War  and  Gen- 
eral Manager  of  Military  Telegraphs.61  Under  the  direction  of 
this  officer,  regulations  were  drawn  up  governing  the  transmis- 
sion of  news  over  the  telegraph  wires,62  and  a  general  policy  of 
news  control  was  instituted,  tho  the  fact  that  the  mails  remain- 
ed open  and  uncensored  made  these  but  half-way  measures  to- 
wards effectively  closing  the  news  channels. 

There  were  also  some  attempts  at  suppression  of  newspapers 
and  discipline  of  correspondents.  In  August,  1861,  Postmaster 
General  Blair  ordered  certain  New  York  and  Brooklyn  papers 
excluded  from  the  mails,  and  the  United  States  marshal  seized 
copies  of  one  of  them  —  these  papers  having  been  indicted  for 
rebellious  utterances ; 63  the  Baltimore  Transcript,  the  Metropoli- 
tan Record,  and  the  Cincinnati  Enquirer  were  each  suppressed 
for  short  periods  by  generals  commanding  in  the  departments  in 
which  they  circulated ;  while  the  New  York  World  and  the  Journ- 
al of  Commerce  were  seized  and  suppressed  for  three  days  in 
May,  1864,  under  orders  of  President  Lincoln,  for  publishing  a 
bogus  proclamation  implying  the  admission  of  a  Union  disaster. 
The  editor  of  the  Baltimore  Exchange,  openly  sympathetic  with 
secession,  was  arrested  and  confined  in  Fort  La  Fayette,  but  re- 
leased after  some  months  by  order  of  the  War  Department ;  the 
Chicago  Times  was  suppressed  in  1863  by  General  Burnside,  but 
his  action  was  revoked  by  the  President.  Several  of  the  gener- 
als, particularly  Grant  and  Sherman,  attempted  at  various  times 

61  See  order  of  Feb.  25,  1862,  taking  possession  of  the  telegraph  lines 
and  naming  Edward  S.  Sanford  as  military  supervisor  of  telegraphic 
messages.  The  same  order  specifically  forbade  telegraphic  communications 
concerning  military  operations  not  erpressly  authorized  by  the  War  De- 
partment, the  commanding  general,  or  the  generals  commanding  in  the 
several  departments;  newspapers  publishing  such  military  news  without 
authority  to  be  excluded  from  the  telegraph  service  and  from  the  rail- 
roads. Eichardson,  op.  tit.,  VI,  108-109. 

«2  For  these  regulations,  see  J.  G.  Randall,  op.  tit.,  305. 

63  These  were  the  Journal  of  Commerce,  the  Daily  News,  the  Freeman's 
Journal,  and  the  Brooklyn  Eagle.  Burgess,  op.  tit.,  II,  222;  Cong.  Eecord, 
65  Cong.,  2  Sess.  (Feb.  19,  1918),  2557. 


197]  POWERS  OF  POLICE  CONTROL  197 

to  discipline  newspaper  correspondents  within  their  lines  with 
varying  degrees  of  success.64 

While  the  actual  governmental  interference  with  the  freedom 
of  the  press  during  the  Civil  War  was,  on  the  whole,  compara- 
tively slight,65  the  precedent  was  established  that  "this  part  of 
the  Constitution  [the  first  amendment]  may  be  suspended  by  or- 
der of  the  Administration,  when  in  the  judgment  of  the  Presi- 
dent the  public  safety  demands  it. ' ' 66 

With  the  entry  of  the  United  States  into  the  recent  world  war, 
the  problem  of  news  control  again  became  acute,  and  on  April 
13,  1917,  Secretary  of  State  Lansing,  Secretary  of  War  Baker, 
and  Secretary  of  the  Navy  Daniels  addressed  a  joint  communica- 
tion to  the  President,  setting  forth  their  views  on  the  subject. 
They  pointed  out  the  danger  in  premature  or  ill-advised  an- 
nouncements of  policies,  plans,  and  specific  activities,  and  sug- 
gested the  need  for  some  authoritative  agency  to  assume  the  pub- 
lication of  all  the  vital  facts  of  national  defense.  "While  there 
is  much  that  is  properly  secret  in  connection  with  the  depart- 
ments of  the  Government,  the  total  is  small  compared  to  the  vast 
amount  of  information  that  it  is  right  and  proper  for  the  people 
to  have.  .  .  It  is  our  opinion  that  the  two  functions  —  censor- 
ship and  publicity  —  can  be  joined  in  honesty  and  with  profit, 
and  we  recommend  the  creation  of  a  Committee  on  Public  In- 
formation. .  .  We  believe  you  have  the  undoubted  authority 
to  create  this  Committee  on  Public  Information  without  waiting 
for  further  legislation,  and  because  of  the  importance  of  the  task, 
and  its  pressing  necessity,  we  trust  that  you  will  see  fit  to  do  so. 
The  committee,  upon  appointment,  can  proceed  to  the  framing 
of  regulations  and  the  creation  of  machinery  that  will  safeguard 
all  information  of  value  to  an  enemy,  and  at  the  same  time  open 
every  department  of  government  to  the  inspection  of  the  peo- 
ple as  far  as  possible. ' ' 67 

In  accordance  with  this  recommendation  and  this  opinion  as 
to  his  powers  with  regard  to  censorship,  President  Wilson,  by 
executive  order  of  April  14,  1917,68  created  such  a  Committee  on 

«*Cong.  Eecord,  65  Cong.,  2  Sess.  (Feb.  19,  1918),  2557;  J.  G.  Randall, 
op.  tit.,  318-321. 

es  J.  G.  Randall,  op.  cit.,  322-323. 

66  Burgess,  op.  cit.,  II,  223. 

67  See  text  of  letter  in  Official  Bulletin,  May  10,  1917. 
es  Official  Bulletin,  May  10,  1917. 


198  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [198 

Public  Information,  "to  be  composed  of  the  Secretary  of  State, 
the  Secretary  of  War,  the  Secretary  of  the  Navy,  and  a  civilian 
who  shall  be  charged  with  the  executive  direction  of  the  commit- 
tee." George  Creel  was  appointed  as  the  civilian  chairman,  and 
the  Secretaries  were  authorized  to  detail  an  officer  or  officers  to 
the  work  of  the  committee. 

Under  the  direction  of  the  committee  so  created,  a  system  of 
voluntary  censorship  was  established.  The  committee  at  various 
times  issued  "requests"  to  the  press  to  suppress  news  with  re- 
spect to  certain  matters  of  military  and  naval  value.69  These 
were  supplemented  from  time  to  time  by  similar  "requests'"  to 
the  press  from  the  Secretary  of  War  and  the  Secretary  of  the 
Navy,70  to  all  of  which  the  press  of  the  country  apparently  re- 
sponded to  the  general  satisfaction  of  the  government  officials.71 

In  addition  to  its  direction  of  this  voluntary  censorship,  the 
policy  of  news  control  was  further  carried  out  by  the  Commit- 
tee on  Public  Information  through  its  organization  of  various 
kinds  of  publicity  services.  A  daily  paper  was  published,  be- 
ginning May  10,  1917,  in  no  sense  in  competition  with  the  regu- 
lar news  journals,  but  containing  ' '  all  proclamations  and  Execu- 
tive orders  issued  by  the  President;  rules  and  regulations  pro- 
mulgated by  the  Federal  departments;  official  bulletins  and 
statements ;  statutes  bearing  on  the  war  and  their  construction ; 
and  all  other  subjects  related  to  the  prosecution  of  the  war,  to 
which  publicity  may  properly  be  given. ' ' 72  Other  pamphlets 

6»  Especially  information  concerning  the  train  and  boat  movements  of 
troops,  the  assembling  of  transports  and  convoys,  or  any  information  from 
which  inference  might  be  drawn  of  embarkation  for  over-seas  service.  The 
suppression  of  the  names  of  armed  merchant  ships  which  had  engaged 
U-boats  was  also  requested,  in  order  to  save  the  captains,  if  later  captured, 
from  the  fate  of  Capt.  Fryatt.  Official  Bulletin,  June  14,  June  15,  1917; 
May  10,  June  10,  1918.  On  July  30,  1917,  the  committee  published  an 
extended  list  of  matters  concerning  which  it  requested  secrecy,  which  list 
was  revised  and  again  strongly  urged  upon  the  press  on  Dec.  31,  1917. 
Ibid.,  July  31,  Dee.  31,  1917. 

TO  Ibid.,  Apr.  3,  May  27,  Aug.  2,  1918. 

71  See  statements  of  Secretary  Daniels  praising  the  spirit  of  the  Ameri- 
can press  in  adhering  to  the  voluntary  censorship.     Ibid.,  Feb.  12,  Aug.  2, 
1918. 

72  See  statement  in  first  number,  May  10,  1917.     The  paper  was  named 
the  Official  Bulletin,  later  changed  to  Official  U.  S.  Bulletin.     It  was  sus- 
pended as  a  government  publication  Mar.  31,  1919,  but  was  continued  as  a 


POWERS  OF  POLICE  CONTROL  199 

were  compiled  and  issued  under  the  direction  of  this  committee, 
giving  information  as  to  the  causes  and  purposes  of  the  war;73 
news  was  gathered  and  disseminated  to  the  newspapers  of  the 
country;  motion  pictures  were  made  and  distributed  under  its 
supervision;  staffs  of  lecturers  were  organized;  and  agencies  of 
various  sorts  were  used  to  stimulate  public  opinion  and  spread 
information  on  the  issues  of  the  war.  All  this  was  done  on  the 
sole  authority  of  the  President,  the  committee  even  operating 
for  a  considerable  time  on  the  executive  budget,  but  later  secur- 
ing some  appropriations  from  Congress.74 

Besides  this  system  of  voluntary  censorship  and  news  control 
under  the  direction  of  the  Committee  on  Public  Information,  a 
rigid  censorship  of  letters  and  other  matter  sent  out  from  the 
camps  and  fields  was  maintained  by  the  military  authorities.  In 
January,  1918,  this  censorship  was  by  General  Order  lightened 
so  as  to  permit  soldiers  in  camp  in  this  country  to  write  freely 
for  publication,  subject  to  censorship  by  designated  officers  who 
were  to  "delete  all  references  capable  of  furnishing  important 
information  to  the  enemy."  Attention  was,  however,  called  to 
the  fact  that  "criticism  of  superiors  and  the  spreading  of  false 
reports  which  would  tend  to  injure  the  military  service  consti- 
tute breaches  of  military  discipline."  Matter  written  by  regu- 
lar newspaper  correspondents  not  in  the  military  service  was 
not  subject  to  any  sort  of  censorship,  but  the  order  directed  camp 
commanders  to  instruct  these  correspondents  "that  they  must 
rigidly  adhere  to  the  requests  for  secrecy  with  respect  to  informa- 
tion of  value  to  the  enemy,  as  defined  ...  by  the  Commit- 

private  enterprise,  under  the  name  United  States  Bulletin,  published  bi- 
weekly by  Roger  W.  Babson. 

73  The  so-called  War  Information  and  Bed,  White,  and  Blue  series. 

74  The  work  and  organization  of  the  Committee  on  Public  Information 
are  outlined  in  Willoughby,   Government   Organisation  in  War  Time  and 
After,  35-39;  also  in  a  pamphlet  compiled  under  the  direction  of  H.  H.  B. 
Meyer,  Chief  Bibliographer  of  the  Library  of  Congress,  The  United  States 
at  War;  Organizations  and  Literature,  79-81.     According  to  a  statement  by 
Mr.  Creel,  the  committee  received  from  the  President  $5,600,000,  while  from 
Congress  it  received  but  $1,250,000.     N.  Y.  Times,  Nov.  1,  1919.     There  was 
much  severe  criticism  of  the  Committee  on  Public  Information  and  especial- 
ly of  its  chairman,  both  during  and  since  the  war;   but  for  a  vigorous 
defense  of  its  work,  see  Creel,  How  We  Advertised  America,  New  York, 
1920. 


200  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [200 

tee  on  Public  Information,"  violations  of  these  instructions  to 
cause  a  denial  of  the  privileges  of  the  camp.75 

In  addition  to  the  voluntary  and  military  censorship  of  news- 
papers and  other  publications  thus  established  within  the  United 
States  on  the  sole  authority  of  the  President,  steps  were  taken 
early  in  the  war  to  establish  a  rigid  censorship  over  the  telephone, 
telegraph,  and  cable  systems.  By  executive  order  of  April  28, 
1917,  President  Wilson  prohibited  all  companies  pperating  tele- 
graph and  telephone  lines  and  submarine  cables  from  transmit- 
ting messages  to  points  without  the  United  States  and  from  de- 
livering messages  received  from  such  points,  except  such  mes- 
sages as  might  be  permitted  under  regulations  established  by  the 
Secretary  of  War  and  the  Secretary  of  the  Navy.76  This  sweep- 
ing order  was  based  on  no  other  authority  than  the  power  vested 
in  the  President  "under  the  Constitution  and  by  the  joint  reso- 
lution of  April  6,  1917,  declaring  the  existence  of  a  state  of 
war ; "  in  other  words,  solely  upon  his  authority  as  Commander- 
in-Chief. 

Under  this  order,  a  particularly  stringent  cable  censorship  was 
established.  The  office  of  Director  of  Naval  Communications 
and  Chief  Cable  Censor  was  created,  under  whose  direction  a 
number  of  cable  censorship  regulations  were  issued  May  1,  and 
amended  May  31,  1917,  with  the  avowed  intention  "to  ease  the 
situation  of  the  American  trader  and  correspondent  abroad,  con- 
sistent with  the  objects  of  military  censorship. ' ' 77  On  July  18, 
the  censorship  was  extended  to  all  Atlantic  cables,  and  new  regu- 
lations were  promulgated,  effective  on  that  date.78 

Thus  far  the  censorship  was  carried  on  solely  by  virtue  of  the 
President's  orders.  However,  the  Trading  with  the  Enemy  Act 
of  October  6,  19 17,79  included  among  its  provisions  one  author- 
izing the  President  to  cause  all  communications  to  and  from  for- 
eign countries  by  mail,  cable,  radio,  or  any  other  means,  to  be  cen- 
sored under  such  rules  and  regulations  as  he  might  establish.80 

75  Official  Bulletin,  Jan.  31,  1918. 

76  Ibid.,  July  18,  1917.     This  order  was  supplemented  by  a  similar  order 
of  Sept.  26,  1918,  extending  the  restrictions  to  messages  on  or  near  the 
Mexican  border.     Ibid.,  Sept.  27,  1918. 

77  Ibid.,  June  5,  1917. 

78/fttflf.,  July  18,  July  25,  1917.     Up  to  that  time,  the  cable  censorship 
had  extended  only  to  South  and  Central  America,  Mexico,  and  the  Orient. 
7»  Public  No.  91,  65  Cong.,  in  Wigmore,  op.  cit.,  543-561. 
«o  See.  3,  Cl.  (d). 


POWERS  OF  POLICE  CONTROL  201 

President  Wilson  thereupon,  by  executive  order  based  upon  this 
act,  created  a  Censorship  Board,  composed  of  representatives  of 
the  Secretaries  of  War  and  Navy,  the  Postmaster  General,  the 
War  Trade  Board,  and  the  chairman  of  the  Committee  on  Public 
Information,  to  control  all  such  communications.81 

Under  the  direction  of  this  board,  the  cable  censorship  was 
tightened,  and  a  great  many  persons,  including  some  American 
citizens,  were  denied  the  use  of  the  cables  altogether.82  The 
work  of  the  chief  cable  censor  was  still  continued,  however,  new 
regulations  being  issued  by  him  in  the  spring  of  1918.83 
The  censorship  thus  exercised  seemed  to  be  based  in  part  on  stat- 
utory authority,  but  chiefly  on  the  authority  of  the  President 
alone,  acting  in  pursuance  of  his  powers  as  Commander-in-Chief. 

In  addition  to  giving  the  President  complete  power  to  censor 
all  communications  of  every  sort  between  this  country  and  a 
foreign  country,  the  Trading  with  the  Enemy  Act  vested  him 
with  considerable  power  over  the  foreign  language  press  of  the 
United  States,  requiring  these  newspapers,  except  by  license 
from  the  President,  to  file  before  publication  a  "true  and  com- 
plete ' '  translation  of  ' '  any  news  item,  editorial,  or  other  printed 
matter,  respecting  the  Government  of  the  United  States,  or  of 
any  nation  engaged  in  the  present  war,  its  policies,  international 
relations,  the  state  or  conduct  of  the  war,  or  any  matter  relating 
thereto. ' ' 84  Provisions  of  the  Espionage  Act  had  likewise  de- 
clared non-mailable  every  sort  of  publication  "containing  any 
matter  advocating  or  urging  treason,  insurrection,  or  forcible 
resistance  to  any  law  of  the  United  States. ' ' 85 

To  the  executive  authorities  charged  with  the  enforcement  of 
these  provisions  was  left  the  exact  determination  of  what  was  to 
constitute  such  non-mailable  matter,  and  Postmaster  General 
Burleson,  in  a  public  statement,  defined  the  position  of  the  Ad- 
ministration as  follows :  ' '  We  shall  take  care  not  to  let  criticism 
which  is  personally  or  politically  offensive  to  the  administration 

si  Executive  order  of  Oct.  12,  1917.     Official  Bulletin,  Oct.  15,  1917. 

sz  See  N.  Y.  Times,  Nov.  9,  1917. 

ss  Official  Bulletin,  May  21,  1918.  The  cable  censorship  ceased  July  23, 
1919,  by  order  of  the  President.  N.  Y.  Times  Current  Hist.  Mag.,  X,  410 
(Sept.,  1919). 

s*  Sec.  19. 

ss  Act  of  June  15,  1917  (Title  XII,  Sec.  2). 


202  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [202 

affect  our  action.  But  if  newspapers  go  so  far  as  to  impugn  the 
motives  of  the  Government  and  thus  encourage  insubordination, 
they  will  be  dealt  with  severely.  For  instance,  papers  may  not 
say  that  the  Government  is  controlled  by  Wall  Street  or  muni- 
tion manufacturers,  or  any  other  special  interests.  Publication 
of  any  news  calculated  to  urge  the  people  to  violate  law  would 
be  considered  grounds  for  drastic  action.  We  will  not  tolerate 
campaigns  against  conscription,  enlistments,  sale  of  securities, 
or  revenue  collections.  We  will  not  permit  the  publication  or 
circulation  of  anything  hampering  the  war's  prosecution  or  at- 
tacking improperly  our  allies. ' ' 86 

The  President's  powers  of  censorship  appear  therefore  to  be 
based  in  part  on  his  constitutional  position  as  Chief  Executive 
and  Commander-in-Chief ,  in  part  on  definite  statutory  authority. 
Through  his  power  to  interpret  and  enforce  the  statute  law,  the 
President  is  enabled  to  exercise  a  considerable  measure  of  con- 
trol over  the  expression  of  opinion  in  time  of  war.  When  to  this 
is  added  the  powers  of  censorship  and  control  exercised  by  the 
authority  of  the  President  alone,  not  only  during  the  recent  war 
but  previously  as  well,  the  President 's  power  in  this  regard  would 
seem  to  be  limited  in  practise  only  by  the  extent  of  the  neces- 
sity, as  judged  by  him. 


se  Statement  of  Oct.  9,  1917,  quoted  in  War  Cyclopedia  (1st  ed.),  163. 
This  was  supplemented  by  another  statement  to  the  same  effect,  issued  in  a 
letter  of  Oct.  22,  1917.  See  text  in  Willoughby,  Government  Organization 
in  War  Time  and  After,  48-49. 


CHAPTER  XII 

POWERS  OF  ECONOMIC  CONTROL 

' '  This  is  a  war  of  resources  no  less  than  of  men,  perhaps  even 
more  than  of  men, ' '  said  President  Wilson  during  the  course  of 
the  recent  wai*;1  and  the  extent  to  which  the  economic  resources 
of  the  belligerent  nations-  were  placed  under  government  con- 
trol is  one  of  the  most  striking  and  unprecedented  features  of 
the  World  War. 

In  the  United  States,  it  has  become  a  well-established  principle 
of  constitutional  law  that  businesses  affected  with  a  public  inter- 
est are  subject  to  government  regulation,  even  in  time  of  peace. 2 
It.  has  likewise  been  long  recognized  that  the  property  rights  of 
private  individuals  must  yield  in  time  of  war  to  the  military 
needs  of  the  nation.  Thus,  during  the  Revolution,  dictatorial 
powers  were  at  various  times  conferred  upon  General  Washing- 
ton ' '  to  take,  wherever  he  may  be,  whatever  he  may  want  for  the 
use  of  the  army,  if  the  inhabitants  will  not  sell  it,  allowing  a 
reasonable  price  for  the  same. ' ' 3  There  was  some  attempt  at 
price-fixing  during  the  same  war,4  and  there  were  many  resolu- 

1  Statement  on  taking  over  the  railroads,  Dee.  26,  1917.     Official  Bulle- 
tin, Dec.  27,  1917. 

2  German  Alliance  Insurance  Company  v.    Lewis,    233    U.    S.,    389,    411 
(1914). 

3  Resolve  of  Dec.  27,  1776.     See  also  resolves  of  Sept.  17  and  Nov.  14, 
1777.     Jour.  Cont.  Cong.,  VI,  1045;  VIII,  752;  IX,  905. 

*A  resolution  of  Nov.  22,  1777,  recommended  that  the  states  enact 
price-fixing  legislation,  "in  order  to  introduce  immediate  economy  in  the 
public  expense,  the  spirit  of  sharping  and  extortion,  and  the  rapid  and 
excessive  rise  of  every  commodity  being  confined  within  no  bounds; "  and  a 
resolution  of  Jan.  15,  1778,  empowered  the  Board  of  War  to  limit  the 
prices  to  be  given  for  wheat  and  flour.  The  repeal  of  all  such  price-fixing 
legislation  was  recommended  June  4,  1778,  the  resolution  declaring  that 
' '  it  hath  been  found  by  Experience  that  Limitations  upon  the  Prices  of 
Commodities  are  not  only  ineffectual  for  the  Purposes  proposed,  but  like- 

203 


204  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [204 

tions  recommending  and  authorizing  the  " impressment"  of  sup- 
plies of  all  kinds  needed  for  the  army,  including  "wheat  in 
the  sheaf."5 

The  entry  of  the  United  States  into  the  World  War,  requiring 
the  mobilization,  not  only  of  the  military  and  naval  forces  of 
the  nation,  but  of  its  every  economic  resource  as  well,  emphasiz- 
ed the  fact  that  in  time  of  war  the  constitutional  principle  of 
government  regulation  and  control  may  be  extended  to  cover 
practically  every  enterprise  and  activity  within  the  country; 
that  "the  extraordinary  circumstances  of  war  may  bring  par- 
ticular businesses  and  enterprises  clearly  into  the  category  of 
those  which  are  affected  with  a  public  interest  and  which  de- 
mand immediate  and  thoroughgoing  public  regulation. ' ' 6 

Control  of  Food  and  Fuel.  From  the  first,  it  was  recognized 
that  the  great  contribution  of  the  United  States  to  the  winning 
of  the  war  must  be  the  supplying  of  food  for  itself  and  the  Allies. 
Hence  a  policy  of  food  control  was  entered  upon,  centered  al- 
most entirely  in  the  hands  of  the  President.  Immediately  after 
the  declaration  of  a  state  of  war  with  Germany,  Herbert  Hoover 
was  selected  (on  April  7)  by  the  Council  of  National  Defense  as 
chairman  of  its  committee  on  food  supply  and  prices,7  and  on 
May  19  his  appointment  as  Food  Administrator  and  a  program 
of  food  administration  were  announced  by  President  Wilson,8 
even  tho  the  administration  bills  vesting  the  President  with  pow- 
ers of  food  and  fuel  control  had  not  yet  been  acted  upon  by 
Congress.9  President  Wilson  followed  this  action  with  a  letter 
to  Mr.  Hoover  on  June  12,  1917,  in  which  he  stated  that  the  sav- 
ing of  food  and  the  elimination  of  waste  admitted  of  no  further 
delay,  and  therefore,  without  waiting  for  the  legislation  which  he 
considered  desirable,  he  vested  Mr.  Hoover  with  "full  authority 
to  undertake  any  steps  necessary"  for  the  proper  organization 

wise  productive  of  very  evil  Consequences  to  the  great  Detriment  of  the 
public  Service  and  grievous  Oppression  of  Individuals."  Ibid.,  IX,  957; 
X,  55;  XI,  569,  570. 

s  Ibid.,  Ill,  323;  VI,  1001;  VIII,  741;  IX,  774-775,  962,  1043;  XX, 
516,  598. 

6  Statement  of  ex- Justice  Hughes,  quoted  in  War  Cyclopedia  (lsted.),96. 

iPol.  Sci.  Quar.,  XXXII,  Supp.,  25. 

*N.  T.  Times,  May  20,  1917. 

a  These  administration  bills  were  introduced  into  Congress  the  latter  part 
of  April. 


205]  POWERS  OF  ECONOMIC  CONTROL  205 

and  stimulation  of  efforts  along  these  lines.10  Accordingly, 
conservation  campaigns  were  organized  throughout  the  country, 
voluntary  workers  were  enrolled,  and  a  set  of  food  rules  were 
promulgated  and  issued,11  all  on  the  authority  of  the  President 
alone. 

Finally,  in  August,  1917,  Congress  passed  the  Food  and  Fuel 
Control  Act,12  vesting  the  President  with  complete  control  over 
the  food  and  fuel  resources  of  the  nation.  He  was  empowered, 
whenever  he  should  deem  it  essential,  to  license  the  importation, 
exportation,  manufacture,  storage,  and  distribution  of  food, 
feed,  fertilizer,  and  fuel,  and  to  prescribe  regulations  governing 
the  businesses  so  licensed;  to  fix  prices  of  such  food  and  fuel; 
to  requisition  such  food,  fuel,  and  other  supplies,  or  factories  or 
mines  in  which  these  are  produced,  "whenever  he  shall  find  it 
necessary;"  to  buy  and  sell  wheat,  flour,  meal,  beans,  and  po- 
tatoes, at  prices  to  be  fixed  by  him;  to  set  a  minimum  guaran- 
teed price  for  wheat  (to  be  not  less  than  $2  per  bushel)  ;  to  regu- 
late the  operations  of  boards  of  trade ;  to  limit,  regulate,  or  pro- 
hibit the  use  of  foodstuffs  in  the  production  of  beverages,  wheth- 
er alcoholic  or  non-alcoholic;  and,  finally,  "to  make  such  regu- 
lations and  to  issue  such  orders  as  are  essential  effectively  to 
carry  out  the  provisions  of  this  Act.". 

Under  authority  of  these  provisions,  President  Wilson  on  Au- 
gust 10,  1917  (the  day  of  the  passage  of  the  act),  again  formally 
announced  the  appointment  of  Herbert  Hoover  as  Food  Admin- 
istrator 13  (altho  Mr.  Hoover  had  been  acting  as  such  by  execu- 
tive authority  since  May  19),  and  turned  over  to  him  the  immed- 
iate administration  of  the  act.  Steps  were  also  taken  at  once  to 
exercise  the  powers  conferred  by  the  act  and  to  place  the  food 
resources  of  the  country  under  a  more  thoro  system  of  control. 
Through  a  series  of  proclamations,  the  President  required  li- 
censes of  practically  every  sort  of  business  connected  with  the 
production  and  distribution  of  food,  including  elevators  and 

l°0fficial  Bulletin,  June  18,  1917.  For  statement  by  Mr.  Hoover  con- 
cerning the  aims  of  the  Food  Administration,  see  ibid.,  June  20,  1917. 

11  Ibid.,  July  7,  1917.     These  were  aa  yet,  however,  only  for  voluntary 
observance. 

12  Act  of  Aug.  10,  1917.     Public  No.  41,  65  Cong.,  in  Wigmore,  Source- 
Book  of  Military  Law  and  War-Time  Legislation,  504-516. 

13  Official  Bulletin,  Aug.  11,  1917. 


206  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [206 

mills  for  the  storage  or  distribution  of  wheat  and  rye;  the  im- 
portation, manufacture,  and  refining  of  sugar,  sirups,  and  mo- 
lasses; the  importation,  manufacture,  storage,  and  distribution 
of  more  than  twenty  staple  foods ;  the  dealing  in  bread,  bakery 
products,  and  green  coffee;  the  arsenic,  ammonia,  and  fertilizer 
industries ;  the  trading  in  farm  equipment ;  stockyards  and  con- 
nected businesses.14 

Besides  inaugurating  this  system  of  regulation  through  li- 
censing, the  President  empowered  the  Food  Administrator  to  lim- 
it profits,15  and  to  requisition  such  foods  and  feeds,  with  their 
storage  facilities,  as  he  might  deem  necessary  "for  any  public 
use  connected  with  the  common  defense,  other  than  the  support 
of  the  Army  or  the  maintenance  of  the  Navy. " 16  He  guaran- 
teed a  minimum  price  for  the  wheat  crops  of  1918  and  1919,17 
and  ordered  the  organization  of  a  Grain  Corporation  to  purchase, 
store,  and  sell  this  wheat,  and  make  the  guarantee  effective.18 
He  limited  the  alcoholic  content  of  malt  and  vinous  liquors  to 
2.75  per  cent,  and  finally  brought  about  total  prohibition  by 
forbidding  the  use  of  any  foodstuffs  in  the  production  of  such 
malt  liquors,  whether  alcoholic  or  non-alcoholic.19 

Altho  most  of  these  war-time  restrictions  were  removed  within 
a  few  months  after  the  signing  of  the  armistice,20  some  of  them 
were  again  revived  and  enforced  about  a  year  after  that  event, 
when  the  powers  of  the  Food  Administration  were  transferred 

i*  U.  8.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  45,  52 ;  ibid.,  2  Bess.,  69,  92,  98, 
107,  131,  133,  158,  202,  222;  Official  Bulletin,  Oct.  11,  1917,  Jan.  14,  May 
15,  1918;  N.  Y.  Times,  Oct.  10,  Nov.  13,  1917. 

is  Executive  order  of  Nov.  23,  1917.     N.  Y.  Times,  Dee.  1,  1917. 

IB  Executive  order  of  Oct.  23,  1917.     Official  Bulletin,  Nov.  1,  1917. 

17  Proclamations  of  Feb.  21  and  Sept.  2,  1918.  U.  S.  Stats.,  65  Cong., 
2  Sess.,  Procs.,  105,  200. 

is  Executive  orders  of  Aug.  14,  1917  and  June  23,  1918.  Emergency 
Legislation,  174-176;  Official  Bulletin,  June  24,  1918. 

i»  Proclamations  of  Dec.  8,  1917  and  Sept.  16,  1918.  U.  S.  Stats.,  65 
Cong.,  2  Sess.,  Procs.,  84,  204.  These  must,  of  course,  be  distinguished 
from  the  War-Time  Prohibition  Act,  passed  by  Congress. 

20  Most  of  the  licensing  requirements  were  canceled  by  the  proclamations 
of  Jan.  7,  Jan.  25,  and  Feb.  11,  1919.  U.  S.  Stats.,  65  Cong.,  3  Sess.,  Procs., 
275,  285,  287.  The  prohibition  regulations  were  modified  so  as  to  permit 
the  manufacture  of  near-beer  and  other  non-intoxicating  beverages,  by  the 
proclamations  of  Jan.  30  and  Mar.  4,  1919.  Ibid.,  286,  293. 


207]  POWERS  OF  ECONOMIC  CONTROL  207 

by  executive  order  to  the  Attorney  General  in  an  attempt  to 
avert  the  sugar  famine  and  to  lower  the  high  cost  of  living.21 

Similar  steps  to  control  the  fuel  resources  of  the  nation  were 
taken  by  the  President  under  the  provisions  of  the  Food  and 
Fuel  Control  Act.  Doctor  Harry  A.  Garfield  was  appointed  Fuel 
Administrator  by  executive  order  of  August  23,  1917,22  and  em- 
powered to  carry  out  the  fuel  provisions  of  the  act.  He  ex- 
plained the  purposes  of  the  Fuel  Administration  to  be  "to  se- 
cure the  largest  possible  production  of  fuel  at  prices  just  to  the 
producer  and  reasonable  to  the  consumer. ' ' 23 

As  with  regard  to  the  food  resources,  so  the  President  likewise 
inaugurated  a  system  of  licenses  for  controlling  the  distribu- 
tion of  coal  and  coke  and  the  various  other  fuel  products,  such 
as  fuel  oil  and  natural  gas  ;24  and  fixed  the  prices  to  be  charged.25 
The  Fuel  Administrator,  with  the  approval  of  the  President, 
issued  several  very  drastic  orders  for  the  purpose  of  conserving 
fuel,  such  as  those  for  the  elimination  of  electric  advertising  signs 
and  for  certain  ' '  lightless  nights ; "  26  and  the  sensational  order 
of  January  17,  1918,  suspending  the  operation  of  practically  all 
industry  east  of  the  Mississippi  River  for  a  period  of  five  days 
beginning  January  18,  and  making  the  following  nine  Mondays 
"heatless  days."  This  order  was  promulgated  in  spite  of  pro- 
tests from  every  part  of  the  country,  opinions  that  the  order 
exceeded  the  authority  of  the  Executive,  and  an  official  resolu- 
tion of  the  Senate  asking  for  delay  and  an  explanation,27  —  all 
of  which  illustrates  clearly  the  vast  war-time  power  of  the  Presi- 
dent. 

As  with  regard  to  the  powers  of  the  Food  Administration,  so 
those  of  the  Fuel  Administration  were  revived  by  the  President 
after  the  signing  of  the  armistice  and  the  virtual  ending  of  the 
war,  in  order  to  meet  a  particular  situation.  After  having  pro- 
nounced the  coal  strike  called  for  November  1,  1919,  unjustifiable 

21 N.  T.  Times,  Nov.  22,  1919. 
22  Official  Bulletin,  Aug.  24,  1917. 
23  Ibid.,  Sept.  6,  1917. 

2*  Proclamations  of  Jan.  31,  Mar.  15,  and  Sept.  16,  1918.  U.  S.  Stats., 
65  Cong.,  2  Sess.,  Procs.,  99,  113,  205. 

25  Official  Bulletin,  Aug.  24,  Sept.  6,  Oct.  29,  1917. 

26  Ibid.,  Nov.  14,  Dec.  15,  1917. 

27  See  N.  Y.  Times,  Jan.  17,  Jan.  18,  1918. 


208  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [208 

and  unlawful,  and  having  requested,  without  success,  that  the 
strike  be  called  off,28  President  Wilson,  by  executive  order  of 
October  30,  restored  the  war-time  powers  of  Fuel  Administrator 
Garfield  and  gave  him  full  authority  to  use  these  powers  in  ap- 
plying such  regulations  as  he  should  deem  necessary  to  avert  a 
coal  famine.  Accordingly,  the  priority  list  of  May  25,  1918, 
was  restored,  the  Railroad  Administration  was  vested  with  pow- 
er to  divert  coal  shipments,  the  Department  of  Justice  was  charg- 
ed with  the  enforcement  of  the  maximum  price  list,  drastic  re- 
strictions on  the  use  of  coal  by  "non-essential"  industries  were 
put  into  effect,  railroad  service  was  curtailed,  and  rigid  regula- 
tions were  applied  concerning  the  distribution  of  coal  to  con- 
sumers, until  the  strike  was  called  off  December  10.29 

It  should  be  noted  that  all  these  restrictions  and  regulations 
concerning  both  the  food  and  fuel  resources,  were  established  by 
order  of  the  President,  even  after  the  signing  of  the  armistice, 
by  virtue  of  the  "war  powers"  conferred  upon  him  by  the  Food 
and  Fuel  Control  Act,  a  war  measure  which  had  not  yet  expir- 
ed. 

Control  of  Trade  and  Industry.  Congress,  by  virtue  of  its 
power  over  interstate  and  foreign  commerce,30  may  make  such 
regulations  with  regard  to  both  foreign  and  domestic  commerce 
as  it  may  deem  necessary  or  helpful  towards  the  crippling  of  an 
enemy  and  the  success  of  a  war.  It  chose  to  exercise  this  power 
during  the  events  leading  up  to  the  War  of  1812  and  during  the 
war  itself  by  passing  several  embargo  and  non-intercourse  acts.31 
During  the  Civil  War,  Congress  exercised  the  same  power  by 
forbidding  all  intercourse  between  citizens  of  the  loyal  states 
and  of  those  in  rebellion,  except  by  license  from  the  President.32 

28  See  President  Wilson's  statement  concerning  the  strike.  N.  T.  Times, 
Oct.  26,  1919. 

29/feid.,  Nov.  1,  Dec.  2,  Dec.  9,  Dec.  11,  1919.  The  restrictions  were 
only  gradually  lifted  after  the  calling  off  of  the  strike. 

so  Constitution,  Art.  I,  Sec.  8,  Cl.  3. 

si  Acts  of  Mar.  1  and  June  28,  1809 ;  Apr.  4,  Apr.  14,  and  July  6,  1812 ; 
Dec.  17,  1813;  Feb.  4,  1815.  Annals  of  Cong.,  10  Cong.,  2  Sess.,  App., 
1824;  11  Cong.,  II,  App.,  2508;  12  Cong.,  II,  App.,  2262,  2269,  2354;  13 
Cong.,  II,  App.,  2781;  13  Cong.,  3  Sess.,  App.,  1899.  Eegarding  the  purpose 
of  these  as  war  measures,  see  Writings  of  James  Madison,  VIII,  185-186, 
n.,  188. 

32  Act  of  July  13,  1861.     12  Stat.  at  L.,  255,  257   (Sec.  5).     President 


209]  POWERS  OF  ECONOMIC  CONTROL  209 

Even  without  authority  from  Congress,  however,  the  Presi- 
dent is  also  vested  with  considerable  power  in  regard  to  the  con- 
trol of  trade  in  time  of  war.  By  virtue  of  his  position  as  Com- 
mander-in-Chief,  he  may  declare  a  blockade  of  the  enemy's 
ports,33  and  thus  cut  off  completely  both  the  import  and  export 
trade  with  the  enemy  nation.  President  Polk  exercised  this 
power  by  ordering  a  blockade  of  the  Mexican  ports  in  1846,34 
President  Lincoln  of  the  Southern  ports  in  1861, 35  and  President 
McKinley  of  certain  Cuban  ports  in  1898. 36  It  has  also  been  held 
that  the  President  may,  at  least  in  the  absence  of  congressional 
action  to  the  contrary,  permit  a  limited  commercial  intercourse 
with  the  enemy  in  time  of  war,  and  impose  such  conditions  as 
he  sees  fit.37 

During  the  recent  war  with  Germany  and  Austria-Hungary, 
President  Wilson  never  declared  a  blockade  of  those  countries, 
as  he  might  have  done,  for  the  reason  that  such  action  would  not 
have  cut  off  the  supplies  slipping  through  neutral  countries. 
Since  the  United  States  was  practically  the  only  source  of  supply 
for  these  neutral  countries,  the  problem  was  more  effectively 
solved  by  giving  the  President  blanket  authority  to  regulate 
the  foreign  trade  of  the  United  States.  Under  the  provisions  of 
the  Espionage  Act,  the  President  was  empowered,  whenever  in 
his  opinion  the  public  safety  should  require,  to  forbid  the  ex- 
portation of  any  articles  to  any  country  except  under  such  regu- 
lations as  he  might  choose  to  make.38  Under  the  Trading  with 
the  Enemy  Act,  he  was  given  similar  power  with  respect  to  im- 
ports.39 

Lincoln,  by  order  of  Feb.  28,  1862,  permitted  such  intercourse  under  rules 
and  regulations  prescribed  by  the  Secretary  of  the  Treasury.  Worlcs  of 
Abraham  Lincoln,  (Federal  ed.),  V,  438.  The  removal  of  the  restrictions 
so  placed  was  begun  immediately  after  the  cessation  of  hostilities  (Apr. 
29,  1865),  and  completed  by  June  24,  1865.  Dunning,  Eeconstruction  : 
Political  and  Economic,  27. 

S3  Prise  Cases,  2  Black,  635  (1862). 

s*  Eichardson,  Messages  and  Papers  of  the  Presidents,  IV,  492,  493. 

35  Proclamations  of  Apr.  19  and  27,  1861.    Ibid.,  VI,  14,  15. 

36  Proclamations  of  Apr.  22  and  June  27,  1898.     Ibid.,  X,  202,  206. 
^Hamilton  v.  Dillin,  21  Wall.,  73,  87  (1874) ;  cf.  Glenn,  The  Army  and 

the  Law,  69-70. 

ss  Act  of  June  15,  1917.  Public  No.  24,  65  Cong.  (Title  VII),  in 
Wigmore,  op.  cit.,  493. 

39  Act  of  Oct.  6,  1917.  Public  No.  91,  65  Cong.  (Sec.  11),  in  Wigmore, 
op.  cit.,  557. 


210  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [210 

By  virtue  of  this  authority,  President  Wilson  at  various  times 
during  the  war  proclaimed  an  embargo  on  long  lists  of  articles,40 
and  prohibited  the  importation  of  other  articles,41  except  under  a 
system  of  licenses  which  he  placed  under  the  supervision  of  the 
War  Trade  Board.42  In  this  way  he  was  able  to  exercise  com- 
plete control  over  the  foreign  trade  of  the  United  States  during 
the  period  of  the  war,  and  thus  to  prevent  supplies  from  reach- 
ing the  enemy,  either  directly  or  through  neutral  channels. 

In  time  of  war  the  President  also  exercises  a  large  measure 
of  control  over  business  within  the  United  States,  his  power  in 
that  regard  being  apparently  based  largely  on  statutory  provi- 
sions, but  also  being  exercised  in  some  instances  by  virtue  of  no 
specific  authority.  For  example,  President  Wilson  immediately 
upon  the  declaration  of  a  state  of  war  with  Germany  and  on  later 
occasions  placed  restrictions  upon  the  German  insurance  compan- 
ies doing  business  in  the  United  States  and  made  regulations 
with  regard  to  German  letters  patent,  his  action  in  each  case  be- 
ing based,  not  on  statute,  but  solely  on  "the  authority  vested  in 
me  as  such. ' ' 43 

Considerable  power  was  vested  in  the  President  by  the  Na- 
tional Defense  Act  of  1916,  which  authorized  him  in  time  of  war 
or  when  war  is  imminent,  to  order  any  individual  or  firm  having 
the  facilities  to  comply,  to  furnish  supplies  or  equipment  for 
the  Army  in  preference  to  any  other  commitments,  at  prices 
named  by  him;  and  in  case  of  default,  to  seize  and  operate  the 
plant.44  Similar  power  to  requisition  shipyards  and  factories  for 
the  manufacture  of  supplies  needed  for  the  Navy  was  vested  in 
the  President  by  the  Naval  Emergency  Fund  Act  of  1917.45 

40  Proclamations  of  July  9,  Aug.  27,  Sept.   7,  Nov.  28,  1917;   Feb.  14, 
1918.     U.  S.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  39,  47,  50;   ibid.,  Z  Sess., 
76,  102. 

41  Proclamations  of  Nov.  28,  1917;  Feb.  14,  1918.     Ibid.,  2  Sess.,  77,  103. 

42  Created  under  authority  of  the  Trading  with  the  Enemy  Act,  and  com- 
posed of  representatives  of  the  Secretaries  of  State,  Treasury,  Agriculture, 
and  Commerce,  and  of  the  Food  Administrator,  the  Shipping  Board,  and  the 
War  Industries  Board.     See  executive  orders  of  Oct.  12,  1917  and  Aug.  20, 
1918.     Official  Bulletin,  Oct.  15,  1917,  Sept.  3,  1918. 

43  Proclamations  of  Apr.  6,  May  24,  and  July  13,  1917.     U.  8.  Stats., 
65  Cong.,  1  Sess.,  Procs.,  10,  25,  40. 

44  Act  of  June  3,  1916.     Public  No.  85,  64  Cong.  (Sec.  120),  in  Wigmore, 
op.  tit.,  439-440. 

45  Act  of  Mar.  4,  1917.     Public  No.  391,  64  Cong.     Ibid.,  458. 


211]  POWERS  OF  ECONOMIC  CONTROL  211 

On  July  28,  1917,  the  War  Industries  Board  was  created  by 
the  Council  of  National  Defense,  with  the  approval  of  the  Presi- 
dent, to  serve  as  "a  clearing  house  for  the  war  industry  needs 
of  the  Government ; " 48  and  in  March,  1918,  its  functions  were 
by  a  mere  letter  of  the  President  continued,  expanded,  and  vest- 
ed almost  exclusively  in  the  chairman,  Bernard  M.  Baruch.47  Fi- 
nally, by  executive  order  of  May  28,  1918,  the  President  formally 
made  the  War  Industries  Board  an  independent  administrative 
agency  acting  directly  under  his  authority,  and  thereby  created 
what  one  writer  says  was  "in  effect  an  Industries  Administra- 
tion analogous  in  all  essential  respects  to  the  Food  and  Fuel  Ad- 
ministrations previously  created.  .  .  The  Board  derived  its 
legal  powers  directly  from  the  President.  It  therefore  had  the 
power  to  exercise,  within  its  field,  all  the  powers  of  the  President 
over  industry  entrusted  to  him  by  statute  or  possessed  by  him  in 
virtue  of  his  position  of  head  of  the  armed  forces  of  the  Na- 
tion."48 

Under  the  direction  of  its  chairman  and  upon  the  sole  author- 
ity of  the  President,  the  board  assumed  a  very  large  control  of 
the  industrial  resources  of  the  nation.  It  acted  as  an  agency  for 
centralizing  the  war  demands  of  the  several  government  services ; 
purchased  supplies  for  the  Allies ;  created  new  facilities  and  new 
sources  of  supply;  determined  priorities  of  production  and  de- 
livery; fixed  prices;  and  sought  to  secure  the  elimination  of 
waste  and  unnecessary  effort,  and  the  securing  of  economy  of 
time  and  materials.  The  chairman  was  in  general  required  to 
act  as  the  "general  eye  of  all  supply  departments  in  the  field 
of  industry,"  to  be  a  sort  of  "industrial  chief  of  staff." 

While  the  various  orders  and  decisions  of  the  board  were 
legally  only  "requests,"  they  were  backed  by  the  President's 
powers  to  requisition  factories,  to  withhold  fuel  and  transporta- 
tion facilities,  and  in  other  ways  to  compel  compliance ;  so  that 

«  War  Cyclopedia  (1st  ed.),  293. 

«  See  President  Wilson 's  letter  of  Mar.  4,  1918,  to  Mr.  Baruch,  outlin- 
ing the  functions  of  the  board  and  the  duty  of  the  chairman.  Official  Bul- 
letin, Mar.  31,  1918. 

48  Willoughby,  Government  Organization  in  War  Time  and  After,  76-77; 
see  also  C.  N.  Hitchcock,  "The  War  Industries  Board;  Its  Development, 
Organization  and  Functions,"  in  Jour.  Pol.  Econ.,  XXVI,  545-565  (June, 
1918),  esp.  547,  563. 


212  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [212 

the  War  Industries  Board  was  well  described  as  being  able  to 
"mold  the  country's  industrial  system  almost  as  it  will,"  and  as 
"a  notable  demonstration  of  the  power  of  war  to  force  concert  of 
effort  and  collective  planning  with  centralized  responsibility. ' ' 49 
Through  these  various  means,  the  President  was  enabled  to  ex- 
ercise a  complete  control  over  all  businesses  having  any  relation 
to  war  needs,  which  in  modern  times  includes  practically  the  en- 
tire business  life  of  the  nation. 

Control  of  Property.  The  President  likewise  has  considerable 
power  in  time  of  war  with  regard  to  private  property.  In  the 
United  States  it  has  been  held  that  a  state  of  war  justifies  the 
seizure  and  confiscation  of  enemy  property  found  within  the 
borders  of  the  country,50  in  accordance  with  which  theory  the 
Confiscation  Acts  of  the  Civil  War 51  were  passed,  providing  for 
the  seizure  of  rebel  property  under  certain  conditions.  The  gen- 
eral practise  of  nations  has,  however,  brought  about  the  modern 
rule  of  international  law  that  such  enemy  property  is  no  longer 
subject  to  confiscation,  but  only  to  sequestration  for  the  period  of 
the  war.52 

The  power  of  such  sequestration  might  be  presumed  to  rest 
with  the  President  by  virtue  of  his  executive  authority,  without 
any  further  statutory  authorization.  All  doubt  was  removed, 
however,  during  the  recent  war,  by  inserting  in  the  Trading  with 
the  Enemy  Act  provisions  which  empowered  the  President, 
through  the  Alien  Property  Custodian  created  by  that  act,  to 
take  over  and  administer  for  the  period  of  the  war  such  enemy 
property  as  he  might  require.53  President  Wilson  carried  out 
these  powers  through  various  executive  orders,  which  fixed  the 

49  C.  N.  Hitchcock,  op.  cit.,  565,  566. 

so  Brown  v.  United  States,  8  Or.,  110,  122  (1814);  Miller  v.  United 
States,  11  Wall.,  268,  305  (1870) ;  cf.  Glenn,  The  Army  and  the  Law, 
112,  115. 

si  Acts  of  Aug.  6,  1861,  July  17,  1862,  and  Mar.  3,  1863.  12  Stat.  at 
L.,  319,  589,  820. 

52  Lawrence,  Principles  of  International  Law,  424-429. 

63  See  esp.  Sees.  6,  7.  Wigmore,  op.  cit.,  548-552.  The  seizure  of  prop- 
erty by  the  Alien  Property  Custodian  could  not  be  enjoined  by  the  courts, 
his  decisions  as  to  what  constituted  enemy  character  being  held  to  be 
unreviewable  preceding  the  transfer  of  the  property.  Salamandra  Insur- 
ance Company  v.  New  York  Life  Insurance  Company,  254  Fed.  Rep.,  852 
(1918). 


213]  POWERS  OF  ECONOMIC  CONTROL  213 

salary  of  the  Alien  Property  Custodian  and  defined  his  powers 
and  duties,  and  which  entrusted  him  with  the  management,  ad- 
ministration, and  disposition  of  enemy  property  of  all  kinds, 
including  such  things  as  real  estate,  personal  property,  seats  on 
stock  exchanges,  and  businesses  of  all  descriptions.5*  In  short, 
the  Alien  Property  Custodian  was  authorized  "to  step  into  the 
shoes  of  the  enemy  and  exercise  all  the  rights  and  powers  with 
respect  thereto  which  the  enemy  could  exercise  if  no  state  of  war 
existed."55 

Other  powers  with  regard  to  the  control  of  property  were  also 
vested  in  the  President.  Several  acts  of  Congress  authorized  the 
taking  of  land  for  military  or  naval  purposes,56  under  which 
President  Wilson  seized  such  property  as  the  Jamestown  Exposi- 
tion site  and  large  tracts  of  land  in  Maryland,  and  ordered  the 
residents  to  vacate  immediately,  the  compensation  to  be  deter- 
mined later.57  Finally,  by  the  Act  of  May  16,  1918,58  the  Presi- 
dent was  empowered  during  the  war  to  seize  private  property  of 
any  kind,  whether  real  estate,  buildings,  furnishings,  or  im- 
provements, ' '  as  he  may  determine  to  be  necessary  for  the  prop- 
er conduct  of  the  existing  war,"  with  compensation  to  be  fixed 
later.  Altho  under  this  act  nothing  was  exempt  from  being 
commandeered,  its  chief  purpose  was  to  facilitate  the  seizure  of 
housing  for  war  workers  and  government  offices,59  in  accordance 
with  which  the  President  created  a  Housing  Corporation  as  an 
agency  through  which  the  Secretary  of  Labor  might  carry  out 
the  provisions  of  the  act.60 

By  these  means  the  President  was  enabled  to  exercise  a  com- 

e*  Executive  orders  of  Oct.  29,  1917 ;  Feb.  26,  Apr.  2,  July  15,  July  16, 
Aug.  29,  Sept  12,  Sept.  13,  Nov.  12,  1918.  Official  Bulletin,  Oct.  31,  1917 ; 
Mar.  2,  July  18,  July  23,  Aug.  31,  Sept.  17,  Sept.  20,  1918;  Jan.  3,  1919. 

ss  Statement  of  the  Alien  Property  Custodian  (A.  Mitchell  Palmer),  in 
Official  Bulletin,  Mar.  2,  1918. 

56  Acts  of  June  15  and  Oct.  6,  1917;  Apr.  26,  1918.     Public  Nos.  23, 
64,  140,  65  Cong. 

57  Proclamations  of  June  28,  Oct.   16,  Dec.  14,  1917;   June   10,   1918. 
U.  8.  Stats.,  65  Cong.,  1  Sess.,  Procs.,  30;  ibid.,  2  Sess.,  63,  87,  146. 

58  Public  No.  149,  65  Cong. 

59  See  statements  of  Assistant  Secretary  of  War  Crowell,  in  N.  ¥.  Times, 
Mar.  21,  Mar.  22,  1918. 

eo  Executive  order  of  Oct.  29,  1918.  Official  U.  S.  Bulletin,  Jan.  21, 
1919. 


214  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [214 

plete  control  of  all  private  property  within  the  United  States, 
whose  use  might  in  his  opinion  benefit  the  enemy  or  which  he 
might  consider  essential  to  the  war  needs  of  the  country. 

Control  of  Transportation  and  Communication.  The  import- 
ance of  the  transportation  and  communication  services  in  the  suc- 
cessful prosecution  of  war  is  perhaps  second  only  to  that  of  the 
actual  fighting  service.  The  close  relation  between  the  operation 
of  these  lines  of  communication  and  the  military  operations,  and 
the  necessity  of  securing  their  absolute  control  by  the  military 
authorities,  in  order  to  insure  the  regular  and  systematic  trans- 
portation of  troops  and  supplies,  were  recognized  quite  early 
during  the  Civil  War.  Congress,  by  Act  of  January  31,  1862,61 
authorized  the  President,  when  in  his  judgment  the  public  safety 
should  require  it,  to  take  possession  of  any  or  all  telegraph  and 
railroad  lines  within  the  United  States,  together  with  all  their 
equipment  and  personnel ;  to  prescribe  rules  and  regulations  for 
the  use  of  these  lines ;  and  to  place  them  under  military  control. 

Accordingly,  President  Lincoln,  by  order  of  February  11, 
1862,  appointed  D.  C.  McCallum  as  Military  Director  and  Su- 
perintendent of  Railroads,  giving  him  full  authority  to  take  pos- 
session of  the  railroads  and  to  do  "all  things  that  may  be  neces- 
sary and  proper"  for  the  transportation  of  troops  and  sup- 
plies ;62  and  on  May  25,  1862,  the  President  took  formal  military 
possession  of  all  the  railroads  in  the  United  States.63  More 
than  2,000  miles  of  railroad  were  operated,  mostly  in  Southern 
or  border  states,64  which  were  turned  back  to  their  owners  under 
certain  regulations  on  August  8,  1865.65 

During  the  first  months  of  the  recent  war,  an  attempt  was 
made  to  meet  the  transportation  needs  of  the  nation  by  leaving 
the  operation  of  the  railroads  under  private  control,  but  as  one 
system  under  the  the  direction  of  the  Railroads  War  Board, 
a  special  committee  of  the  American  Railway  Association, 

ei  12  Stat.  at  L.,  334.  By  joint  resolution  of  July  14,  1862,  this  act  was 
declared  not  to  authorize  the  President  to  engage  in  any  work  of  railroad 
construction.  Ibid.,  625. 

«2  Richardson,  Messages  and  Papers  of  the  Presidents,  VI,  101. 

63  Ibid.,  113.  See  also  orders  of  May  28  and  July  11,  1862.  Ibid., 
113,  116. 

**Cong.  Eecord,  65  Cong.,  2  Sess.,  2556,  6923  (Feb.  19,  May  13,  1918). 

*s  Ibid.,  2556;  Fleming,  Documentary  History  of  Eeconstruction,  I,  205- 
206. 


215]  POWERS  OP  ECONOMIC  CONTROL  215 

cooperating  with  Mr.  Daniel  Willard,  chairman  of  the  Trans- 
portation and  Communication  Committee  of  the  Council  of  Na- 
tional Defense.66  This  did  not  prove  satisfactory,  however,  and 
before  the  end  of  1917,  suggestions  were  made  from  authoritative 
sources  that  the  President  should  take  control  of  the  railroads 
and  operate  them  for  the  period  of  the  war,67  authority  for  which 
he  already  possessed  by  virtue  of  the  Army  Appropriations  Act 
of  1916.68 

Acting  under  this  authority,  President  Wilson,  by  proclama- 
tion of  December  26,  1917,69  took  possession  of  all  the  rail  and 
water  transportation  systems  in  the  United  States  (excepting 
street-car  and  interurban  lines70),  and  vested  their  administra- 
tion in  Secretary  of  the  Treasury  McAdoo,  who  was  designated 
Director  General  of  Railroads.  Later  the  President  confirmed 
and  continued  the  authority  of  Mr.  McAdoo  as  Director  Gen- 
eral,71 under  the  provisions  of  the  Railway  Control  Act,72  passed 
by  Congress  in  order  that  the  President's  authority  might  be 
complete  and  undoubted.73  This  act  confirmed  the  President's 
power  to  take  over,  control,  and  operate  the  railroads  under  the 
act  of  1916,  authorized  him  to  compensate  the  owners  and  initiate 
rates,  and  provided  that  he  might  relinquish  such  control  at  his 
discretion,  but  that  he  might  in  no  case  exercise  it  longer  than 
one  year  and  nine  months  after  the  declaration  of  peace. 

Acting  under  the  authority  so  conferred  upon  him  by  the 

«o  War  Cyclopedia,  (1st  ed.),  229,  273. 

67  See  report  of  Interstate  Commerce  Commission,  in  N.  T.  Times,  Dec. 
6,  1917. 

es  Act  of  Aug.  29,  1916.    U.  S.  Stats.,  64  Cong.,  1  Sess.,  619,  645. 

6»  U.  S.  Stats.,  65  Cong.,  2  Sess.,  Procs.,  89. 

TO  By  act  of  Apr.  22,  1918,  the  President  was  also  authorized  to  take  over 
and  operate  such  of  these  as  might  be  necessary  for  the  transportation  of  the 
employees  at  the  shipyards  and  plants.  Official  Bulletin,  May  7,  1918. 

71  Proclamation    of   Mar.    29,    1918.     U.   S.   Stats.,    65   Cong.,   2    Sess., 
Procs.,  119. 

72  Act  of  Mar.  21,  1918.     Public  No.  107,  65  Cong.,  in  Wigmore,  op.  cit., 
575-583. 

73  Senator  Cummins  and  others  held,  for  example,  that  the  President's 
scheme  of  compensation  to  the  owners  required  additional  legislation,  and 
it  was  doubted  by  many  whether  he  had  the  power  to  fix  rates  under  the 
act  of  1916.     That  the  President  doubted  his  own  authority  on  some  of 
these  points  is  indicated  by  his  statement  that  he  intended  to  recommend 
additional  legislation.     See  N.  Y.  Times,  Dec.  27,  1917. 


216  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [216 

President,  Director  General  McAdoo  immediately  assumed  active 
charge,  unified  the  railroads  of  the  country  into  one  system, 
made  regulations  concerning  their  operation,  named  his  subor- 
dinate officers,  fixed  both  interstate  and  intrastate  rates,74  in- 
creased the  wages  of  employees,  provided  for  the  adjustment  of 
labor  disputes,  and  in  general  exercised  complete  control,75  not 
only  of  the  railroads,  but  also  of  the  coastwise  steamship  lines, 
ship  canals,  and  express  companies,  control  of  which  had  later 
been  taken  over  by  the  President.78 

Upon  the  resignation  of  Mr.  McAdoo  a  short  time  after  the 
armistice,  the  President  appointed  Walker  D.  Hines-to  succeed 
him  as  Director  General,77  and  continued  through  him  to  exer- 
cise control  of  the  transportation  systems  of  the  United  States 
with  the  view  of  rendering  adequate  service  at  a  reasonable 
cost.78  In  his  message  to  Congress,  May  20,  1919,  President 
Wilson  announced  his  intention  to  return  the  railroads  to  their 
owners  at  the  end  of  the  year,79  but  no  legislation  on  the  subject 
of  future  railroad  control  having  by  that  time  been  enacted  by 
Congress,  he  postponed  the  date  of  return,  setting  it  by  formal 
proclamation  at  March  1,  1920.80  Congress  having  finally  en- 
acted railroad  legislation  by  that  date,81  the  railroads  were  then 
returned  as  promised.  Thus,  for  more  than  two  years,  more  than 
half  of  that  time  after  the  virtual  end  of  the  war,  the  President 
exercised  complete  control  of  the  transportation  systems  of  the 
country,  a  control  which  he  might  have  extended  considerably 

7*  The  right  to  fix  intrastate  as  well  as  interstate  rates  was  upheld  in 
Northern  Pacific  Eailway  Company  v.  North  Dakota,  250  U.  S.,  135  (1919). 

75  A  considerable  number  of  orders  issued  by  the  Director  General  are 
listed  in  Emery  and  Williams,  Governmental  War  Agencies  Affecting  .Busi- 
ness, 44-49. 

76  Proclamations  of  Apr.  11,  July  22,  Nov.  16,  1918.     U.  S.  Stats.,  65 
Cong.,  2  Sess.,  Procs.,  125,  164,  245. 

77  Proclamation  of  Jan.  10,  1919.    Ibid.,  3  Sess.,  278. 

78 '  <  Until  the  signing  of  the  armistice  the  Government 's  first  railroad 
duty  was  to  run  the  railroads  to  win  the  war,  but  now  that  the  war  is  won, 
the  Government's  railroad  job  is  to  render  an  adequate  and  convenient 
transportation  service  at  reasonable  cost."  Statement  of  Mr.  Hines  on 
assuming  office,  Jan.  11,  1919.  Official  U.  8.  Bulletin,  Jan.  13,  1919. 

7»  See  his  message  in  United  States  Bulletin,  May  26,  1919. 

so  Proclamation  of  Dec.  24,  1919.     N.  ¥.  Times,  Dec.  25,  1919. 

si  The  Esch-Cummins  Railroad  bill  was  signed  by  the  President  Feb.  28, 
1920.  Ibid.,  Feb.  29,  Mar.  1,  1920. 


217]  POWERS  OF  ECONOMIC  CONTROL  217 

longer,  on  account  of  the  delay  in  the  ratification  of  the  peace 
treaty  and  the  formal  declaration  of  peace. 

With  regard  to  shipping,  a  large  measure  of  control  was  ex- 
ercised by  the  President  during  the  recent  war  through  the  Ship- 
ping Board  and  the  Emergency  Fleet  Corporation,  created  by 
the  Act  of  September  7,  1916.82  Acting  under  the  direction  of 
the  President,  this  board  and  this  corporation  had  as  their  war- 
time task  the  providing  of  an  adequate  merchant  marine  to  meet 
the  extraordinary  transportation  demands  of  the  war  and  the 
losses  from  submarine  attacks.  The  Shipping  Board  controlled 
directly  the  operation  of  all  American  ocean  vessels;  and  by 
means  of  authority  delegated  to  it  by  executive  order,  requisi- 
tioned all  American  ships  completed  or  building  during  the  war, 
fixed  freight  rates,  and  determined  terminal  charges.83  The 
Emergency  Fleet  Corporation,  acting  as  the  construction  agency 
of  the  Shipping  Board  (and,  through  it,  of  the  President),  added 
a  vast  amount  of  tonnage  to  the  shipping  in  use  during  the  war.84 

Additional  shipping  was  secured  through  the  seizure  of  enemy 
and  neutral  vessels  lying  within  United  States  ports  at  the  out- 
break of  the  war.  International  law  and  practise  allow  a  bel- 
ligerent to  requisition  and  utilize  such  vessels,  if  needed  for  war 
purposes,85  and  the  presumed  authority  of  the  President  to  act 
under  this  rule  was  further  strengthened  by  the  Joint  Resolution 
of  May  12,  1917,86  expressly  authorizing  him  to  take  over  enemy 
vessels  for  use  and  operation  during  the  war,  and  by  a  provision 
in  the  Emergency  Shipping  Fund  Act  of  June  1,  1917,8r  em- 
powering him  similarly  to  requisition  any  vessel  within  the  jur- 
isdiction of  the  United  States.  Acting  therefore  under  author- 
ity both  of  international  law  and  of  statute,  President  Wilson 
seized  the  German  and  Austrian  vessels  interned  in  the  ports  of 

82  Public  No.  260,  64  Cong.,  in  Wigmore,  op.  tit.,  447-454;  amended  by 
Act  of  July  15,  1918.     Public  No.  198,  65  Cong.,  ibid.,  455-457. 

83  See,  for  example,  its  announcement  requisitioning  on  Oct.  15,  1917,  all 
American  vessels  of  not  less  than  2500  tons  capacity.     Official  Bulletin, 
Oct.   13,  1917.     See  also  executive  orders  of  June  18  and  Dec.   3,  1918. 
Ibid.,  June  20,  Dec.  16,  1918. 

s*  Figures  for  the  early  months  of  the  war  may  be  found  in  War  Cyclo- 
pedia (1st  ed.),  253. 

ss  Lawrence,  Principles  of  International  Law,  456,  626-628. 
sa  Public  Ees.  No.  2,  65  Cong.,  in  Emergency  Legislation,  18. 
87  Public  No.  23,  65  Cong.,  in  Wigmore,  op.  cit.,  482-484. 


218  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [218 

the  United  States,88  and  likewise  requisitioned  the  Dutch  ships 
lying  idle  within  its  jurisdiction.89  The  docks  and  terminal 
equipment  of  the  German  steamship  companies  were  also  taken 
over,90  under  express  statutory  authority,91  the  compensation 
therefor  being  determined  by  the  President  after  the  signing  of 
the  armistice.92 . 

It  has  already  been  noted  that  the  Act  of  Congress  authoriz- 
ing military  control  of  the  railroads  during  the  Civil  War,  also 
authorized  the  President  to  assume  such'  control  of  the  telegraph 
lines.93  Acting  under  this  authority,  the  President,  on  February 
26,  1862,  took  military  possession  of  all  the  telegraph  lines  in 
the  United  States,  and  appointed  Anson  Stager  Military  Super- 
intendent of  these  lines,  exercising  military  control  during  the 
remainder  of  the  war.  It  was  expressly  ordered,  however,  that 
such  control  was  "not  intended  to  interfere  in  any  respect  with 
the  ordinary  affairs  of  the  companies  or  with  private  busi- 
ness."94 

During  the  recent  war,  a  much  more  comprehensive  control 
was  established  over  all  the  means  of  communication.  As  early 
as  1912,  Congress  had  authorized  the  President,  "in  time  of 
war  or  public  peril  or  disaster,"  to  close,  control,  or  take  over 
and  use  all  the  radio  stations  within  the  jurisdiction  of  the  Uni- 
ted States;95  and  by  joint  resolution  of  July  16,  1918,  he  was 
further  empowered  to  take  possession  of  and  to  operate,  in  time 
of  war,  any  telegraph,  telephone,  marine  cable,  or  radio  system, 
such  control  not  to  extend  beyond  the  date  of  the  declaration  of 
peace.96 

ss  Executive  orders  of  May  14,  May  16,  May  22,  June  12,  June  30,  July 
3,  Sept.  27,  Nov.  2,  1917.  Emergency  Legislation,  169-170,  171-173,  179, 
189;  N.  Y.  Times  Current  Hist.  Mag.,  VI,  237. 

89  Proclamation  of  Mar.  20,  1918.  U.  S.  Stats.,  65  Cong.,  2  Sess.,  Procs., 
117.  The  87  Dutch  vessels  thus  seized  were  returned  in  the  early  part  of 
1919.  Official  U.  8.  Bulletin,  Feb.  3,  1919. 

»o  Proclamation  of  June  28,  1918.  U.  S.  Stats.,  65  Cong.,  2  Sess.,  Procs., 
160. 

»i  Urgent  Deficiency  Act  of  Mar.  28,  1918.  Public  No.   109,  65  Cong. 

»2  Proclamation  of  Dec.  3,  1918.  U.  S.  Stats.,  65  Cong.,  3  Sess.,  Procs., 
270. 

»3  Supra,  214. 

94  See  order  of  Feb.  25,  1862.    Richardson,  op.  cit.,  VI,  108-109. 

»5  Act  of  Aug.  13,  1912.  37  Stat.  at  L.,  302  (Sec.  2). 

96  Public  Res.  No.  38,  65  Cong.     U.  S.  Stats.,  65  Cong.,  2  Sess.,  904. 


219]  POWERS  OF  ECONOMIC  CONTROL  219 

Acting  therefore  under  express  statutory  authority,  President 
Wilson,  immediately  upon  the  entry  of  the  United  States  into 
the  World  War,  directed  the  Secretary  of  the  Navy  to  assume 
control  of  all  the  means  of  radio  commninication  within  the  jur- 
isdiction of  the  United  States.97  On  July  22,  1918,  he  took  over 
the  telegraph  and  telephone  systems,  vesting  their  administration 
in  the  Postmaster  General;98  and  shortly  before  the  armistice 
was  signed,  he  likewise  assumed  control  of  the  marine  cables.99 

The  war-time  control  thus  assumed  of  the  wire  services  differ- 
ed from  that  assumed  in  the  Civil  War  in  that  it  was  not  strict- 
ly for  military  purposes,  but  to  overcome  the  difficulties  of  a 
competitive  system  arising  out  of  the  war,  and  "to  broaden  the 
use  of  the  service  at  the  least  cost  to  the  people. ' '  10°  The  seiz- 
ure of  the  cables,  tho  vigorously  assailed  as  an  undue  exercise  of 
executive  power,101  was  explained  by  the  President  to  have  been 
necessary  in  order  "to  keep  an  open  wire  constantly  available 
between  Paris  and  the  Department  of  State,  and  another  be- 
tween France  and  the  Department  of  War, ' ' 102  and  was  upheld 
by  the  courts  as  a  legitimate  exercise  of  his  war  power.1*3 

Complete  control  over  these  various  systems  of  communica- 
tion was  exercised  by  the  Postmaster  General,  acting  under  the 
direction  and  authority  of  the  President,  extending  to  the  uni- 
fication of  the  various  competing  companies,  the  ousting  of  the 
old  officers  in  many  cases,  and  the  fixing  of  rates,  both  inter- 
state and  intrastate,104  until  the  systems  were  returned  to  pri- 
vate control.105 

87  Executive  order  of  Apr.  6,  1917.  Willoughby,  Government  Organisa- 
tion in  War  Time  and  After,  40. 

98  Proclamation  of  July  22,  1918.  U.  5.  Stats.,  65  Cong.,  2  Sess.,  Procs., 
163. 

»9  Proclamation  of  Nov.  2,  1918.     Ibid,,  228. 

100  Statement  of  Postmaster  General  Burleson  on  assuming  control.  Of- 
ficial Bulletin,  July  24,  1918. 

101  See  argument  of  ex-Justice  Hughes.    N.  Y.  Times,  Dec.  28,  1918. 

102  Address  to  Congress,  Dec.  2,  1918.     Ibid.,  Dec.  3,  1918. 
^Commercial  Cable  Company  v.  Burleson,  255  Fed.  Eep.,  99  (1919). 
10* The  President's  right  to  fix  both  interstate  and  intrastate  rates  for 

the  wire  services  was  upheld  in  Dakota  Central  Telephone  Company  v.  South 
Dakota,  250  U.  S.,  163  (1919). 

105  The  cables  were,  by  order  of  Apr.  29,  1919,  returned  to  their  owners 
on  May  2,  1919;  the  telegraph  and  telephone  systems  on  August  1,  1919. 
United  States  Bulletin,  May  1,  1919;  Pol.  Sri.  Quar.,  XXXIV,  Supp.,  25 
(Sept.,  1919). 


IV.  Powers  Relating  to  the  Termination 
of  War 


CHAPTER  XIII 

POWER  OF  TERMINATING  WAR  IN  THE 
UNITED  STATES 

There  are  generally  said  to  be  three  different  ways  in  which  a 
war  may  be  terminated:  (1)  there  may  be  a  simple  cessation 
of  hostilities  on  the  part  of  the  belligerents;  (2)  there  may  be 
a  complete  subjugation  of  one  of  the  belligerents  by  the  other, 
involving  the  conquest  and  annexation  of  its  territory  and  the 
extermination  of  its  government;  and  (3)  there  may  be  a  form- 
al re-establishment  of  peaceful  relations  between  the  belliger- 
ents through  an  agreement  embodied  in  a  special  treaty.1 

Instances  of  the  first  method  are  rare,  and  have  never  occur- 
red in  the  case  of  wars  to  which  the  United  States  has  been  a 
party.  The  second  method  is  more  common  in  the  history  of  na- 
tions,2 but  would  seem  to  be  precluded  as  a  possibility  on  the 
part  of  the  United  States,  because  of  the  doctrine  laid  down  by 
the  Supreme  Court  that  wars  of  conquest  and  aggrandizement 
by  the  United  States  are  unconstitutional.3  A  treaty  of  peace  is 

1  Oppenheim,  International  Law,  II,  275 ;  Lawrence,  Principles  of  Inter- 
national Law,  568. 

2  For  examples  of  each  of  these  methods,  see  Oppenheim,  op.  tit.,  II, 
275-276,  279. 

s ' '  The  genius  and  character  of  our  institutions  are  peaceful  and  the 
power  to  declare  war  was  not  conferred  upon  Congress  for  the  purpose  of 
aggression  or  aggrandizement,  but  to  enable  the  general  government  to 
vindicate  by  arms,  if  it  should  become  necessary,  its  own  rights  and  the 
rights  of  its  citizens.  A  war,  therefore,  declared  by  Congress  can  never 
be  presumed  to  be  waged  for  the  purpose  of  conquest  or  the  acquisition  of 
territory;  nor  does  the  law  declaring  the  war  imply  an  authority  to  the 
President  to  enlarge  the  limits  of  the  United  States  by  subjugating  the 
enemy's  country.  .  .  He  may  invade  the  hostile  country,  and  subject  it 
to  the  sovereignty  and  authority  of  the  United  States.  But  his  conquests 
do  not  enlarge  the  boundaries  of  this  Union,  nor  extend  the  operation  of 
our  institutions  and  laws  beyond  the  limits  before  assigned  to  them  by 

223 


224  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [224 

therefore  not  only  ' '  the  normal  method  of  terminating  war, ' '  * 
and  the  only  method  heretofore  employed  in  the  case  of  wars  in 
which  the  United  States  has  been  a  belligerent  (excepting,  of 
course,  the  Civil  War) ,  but  has  also  apparently  been  considered 
throughout  our  entire  history  as  the  only  possible  method  under 
the  Constitution. 

Recently,  however,  strong  opinions  have  been  expressed  that 
wars  may  be  terminated  by  the  United  States  in  other  ways  than 
by  a  formal  treaty  of  peace.  Thus,  in  an  address  before  the 
Washington  Commercial  Club,  March  18,  1919,  Senator  Lenroot 
(Wisconsin),  speaking  against  the  proposed  constitution  for  the 
League  of  Nations  and  protesting  particularly  against  the  in- 
corporation of  that  constitution  into  the  peace  treaty,  made  this 
statement:  "We  have  accomplished  the  purpose  we  had  when 
we  declared  war  and,  while  it  would  be  desirable  to  have  a  form- 
al treaty  of  peace  with  Germany,  it  is  not  necessary.  We  can 
declare  the  war  ended  and  go  about  our  business,  and  I  confi- 
dently predict  that  this  is  what  will  be  done  if  the  treaty  is  not 
ratified  by  the  Senate. " 5  A  statement  by  Senator  Poindexter 
(Washington),  issued  on  the  same  day,  was  to  the  same  effect 
but  even  more  explicit :  "If  the  American  delegation  refuses  to 
make  peace  with  Germany,  let  the  Entente  make  peace  with 
Germany,  and  let  Congress  assemble  and  declare  peace  and  pass 
a  law  to  bring  the  American  army  home.  Congress  has  the  same 
power  to  declare  peace  that  it  has  to  declare  war,  and  has  full 
control  over  all  movements  of  the  army  and  navy,  including  the 
Commander-in-Chief . "  6  A  well  known  journal  likewise  expres- 
sed the  opinion  that  ' '  Congress  could  at  any  time  by  simple  reso- 
lution declare  the  state  of  war  at  an  end, ' ' 7  and  at  least  one  dis- 
tinguished jurist  has  concurred  in  these  views,  saying  that ' '  peace 
could,  no  doubt,  also  be  restored  by  an  Act  of  Congress. ' ' 8 

Moreover,  serious  attempts  have  recently  been  made  in  Con- 
gress to  assert  the  power  of  that  body  to  declare  peace  independ- 

the  legislative  power."  Fleming  v.  Page,  9  How.,  603,  614-615  (1849). 
Cf.  also  S.  E.  Baldwin,  in  Am.  Jour.  Int.  Law,  XII,  14  (Jan.,  1918)  ; 
Memoirs  of  John  Qui/ncy  Adams,  XII,  144  (Jan.  10,  1845). 

4  Oppenheim,  op.  tit.,  II,  280. 

o  N.  Y.  Times,  Mar.  19,  1919. 

«Ibid.,  Mar.  18,  1919. 

7  The  Nation,  May  31,  1919. 

sS.  E.  Baldwin,  in  Am.  Jour.  Int.  Law,  XII,  13-14  (Jan.,  1918). 


225]  POWER  OF  TERMINATING  WAR  IN  UNITED  STATES  225 

ently  of  a  formal  treaty.  Thus,  Senator  Knox,  on  June  10,  1919, 
declared  that  any  attempt  on  the  part  of  the  Peace  Conference 
so  to  intertwine  the  peace  treaty  and  the  covenant  of  the  League 
of  Nations  as  to  prevent  their  separation  by  the  Senate,  would  be 
met  with  a  resolution  in  Congress  declaring  the  war  formally  at 
an  end.9  On  June  23,  Senator  Fall  (New  Mexico)  and  Senator 
Edge  (New  Jersey)  each  offered  joint  resolutions  in  the  Senate 
declaring  the  state  of  war  between  Germany  and  the  United 
States  terminated;  and  on  September  15,  Representative  Mason 
(Illinois)  submitted  a  concurrent  resolution  in  the  House  declar- 
ing peace  "with  all  the  world."  10 

These  resolutions  were  all  allowed  to  die  in  committee,  but 
immediately  after  the  first  rejection  of  the  treaty  on  November 
19,  Senator  Lodge,  Republican  floor  leader  and  chairman  of  the 
Senate  Committee  on  Foreign  Relations,  offered  a  concurrent 
resolution  ' '  that  the  said  state  of  war  between  Germany  and  the 
United  States  is  hereby  declared  to  be  at  an  end, ' '  while  Senator 
Knox,  on  December  13,  offered  a  joint  resolution  declaring 
simply,  "That  peace  exists  between  the  United  States  and  Ger- 
many." These  two  resolutions  were  taken  under  serious  consid- 
eration by  the  Senate  Committee  on  Foreign  Relations,  and  on 
December  20,  Senator  Knox  reported  from  that  committee  a  sub- 
stitute joint  resolution,  repealing  the  joint  resolution  of  April 
6,  1917,  which  declared  a  state  of  war  with  Germany,  and  pro- 
viding that  such  repeal  should  be  effective,  with  certain  stated 
conditions  upon  Germany,  "upon  the  ratification  of  a  treaty  of 
peace  between  Germany  and  three  of  the  principal  allied  and 
associated  powers. ' '  " 

The  expressions  of  opinion  noted,  the  presentation  and  serious 
consideration  of  these  resolutions  by  the  responsible  leaders  of 
the  majority  party  in  Congress,  and  the  later  unprecedented 
action  in  actually  pressing  a  similar  resolution  to  a  vote,12  would 

»  Press  report  in  Chicago  Tribune,  June  11,  1919. 

10  S.  J.  Res.  60,  Mr.  Fall;  S.  J.  Res.  61,  Mr.  Edge;  H.  Con.  Res.  32, 
Mr.  Mason.  Cong.  Record,  66  Cong.,  1  Sess.,  1629,  5808. 

"S.  Con.  Res.  17,  Mr.  Lodge;  S.  J.  Res.  136,  Mr.  Knox;  S.  J.  Res. 
139,  Mr.  Knox.  Cong.  Record,  66  Cong.,  I  Sess.,  9321;  ibid.,  2  Sess.,  540, 
981. 

12  Immediately  after  the  second  rejection  of  the  peace  treaty  by  the 
Senate  on  Mar.  19,  1920,  Senator  Knox  moved  consideration  of  his  resolu- 
tion repealing  the  declaration  of  war,  and  several  proposals  were  again 


226  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [226 

seem  to  make  pertinent  a  brief  examination  into  the  subject  of 
the  power,  in  the  United  States,  to  terminate  war  and  declare 
peace. 

Passing  over  the  obviously  unsound  inference  of  Senator  Poin- 
dexter  that  Congress  might  assemble  in  special  session  on  its 
own  motion,  without  a  call  from  the  President,13  it  might  seem 
evident  that  since  Congress  has  the  power  to  bring  about  a  state 
of  war  by  means  of  a  declaration,  which  has  in  every  case  taken 
the  form  of  an  act  of  Congress  or  of  a  joint  resolution,14  it 
could  also,  by  a  mere  repeal  of  such  declaration,  terminate  the 
state  of  war  and  bring  about  a  state  of  peace.15  It  should  be  point- 
ed out  in  the  first  place,  however,  that  Congress  does  not  have  an 
absolute  power  of  repeal ;  that  is,  it  cannot  repeal  each  and  every 

made  in  the  House  for  terminating  the  state  of  war  and  declaring  peace 
by  action  of  Congress.  On  April  9,  the  House,  by  a  large  majority  (242- 
150),  passed  the  Porter  resolution  (prepared  by  the  House  Committee  on 
Foreign  Affairs),  which  declared  that  "Whereas,  the  President  of  the  Uni- 
ted States  in  the  performance  of  his  constitutional  duty  to  give  to  Congress 
information  of  the  state  of  the  Union,  has  advised  Congress  that  the  war 
with  the  Imperial  German  Government  has  ended,  .  .  .  the  state  of  war 
declared  to  exist  between  the  Imperial  German  Government  and  the  people 
of  the  United  States  ...  is  hereby  declared  at  an  end."  This  reso- 
lution also  provided  for  the  repeal  of  all  the  war  emergency  legislation, 
and  gave  Germany  45  days  in  which  to  declare  a  like  termination  of  the  war 
under  the  conditions  imposed,  with  a  penalty  of  an  economic  boycott  in  case 
of  refusal.  The  Knox  resolution,  repealing  the  declarations  of  war  against 
both  Germany  and  Austria-Hungary,  and  declaring  the  state  of  war  with 
those  countries  at  an  end,  was  substituted  in  the  Senate,  passed  by  that 
body  on  May  15,  by  a  vote  of  43-38,  and  accepted  by  the  House  on  May  21. 
It  failed  of  repassage  over  the  President's  veto,  the  final  vote  in  the  House 
being  219-152.  It  seems  likely,  however,  that  some  such  resolution  may 
be  passed  after  the  inauguration  of  the  new  Republican  admin- 
istration. See  texts  of  the  Porter  and  Knox  resolutions  in  N.  ¥.  Times 
Current  Hist.  Mag.,  XII,  209-210,  372-373  (May,  June,  1920).  For  Presi- 
dent Wilson's  veto  message,  see  ibid.,  XII,  707-709  (July,  1920). 

MSupra,  224. 

!*  The  declarations  in  the  cases  of  the  War  of  1812,  the  war  with  Mexico, 
and  the  war  with  Spain  were  in  the  form  of  acts  of  Congress;  those  in 
the  recent  wars  with  Germany  and  Austria-Hungary  in  the  form  of  joint 
resolutions. 

is  This  is  the  particular  point  emphasized  by  Judge  Baldwin,  op.  cit., 
note  8.  The  same  view  is  also  held  by  Professor  Corwin.  See  his  article, 
"The  Power  of  Congress  to  Declare  Peace,"  in  Mich.  Law  Eev.,  XVIII, 
669-675  (May,  1920),  esp.,  673,  674. 


227]  POWER  OF  TERMINATING  WAR  IN  UNITED  STATES  227 

legislative  enactment  and  thereby  restore  the  status  quo  ante. 
For  example,  states  are  admitted  to  the  Union  by  means  of  an 
enabling  act  passed  through  the  ordinary  legislative  channels; 
but  no  state  can  be  deprived  of  its  place  in  the  Union  by  a 
subsequent  repeal  or  nullification  of  that  earlier  legislative  act 
of  admission.16  Hence,  it  does  not  necessarily  follow  that  Con- 
gress can,  by  an  act  of  repeal,  terminate  a  state  of  war  and  de- 
clare a  state  of  peace,  merely  because  it  can,  by  a  legislative 
declaration,  bring  about  such  a  state  of  war. 

In  the  second  place,  it  should  be  noted  that  such  an  act  of  re- 
peal is  subject  to  the  approval  or  veto  of  the  President,  just  as 
the  original  declaration,  and  hence  its  enactment  would  not  be 
so  simple  a  matter  as  these  senators  seem  to  conclude.  If  such 
an  act  were  passed  over  the  President 's  veto,  the  President  could 
still  prevent  the  complete  restoration  of  a  normal  state  of  peace 
by  declining  to  resume  diplomatic  relations  with  the  former 
enemy  or  to  perform  other  acts  that  are  strictly  within  his  juris- 
diction but  which  presuppose  a  state  of  peace.  A  declaration  of 
peace  by  Congress  through  a  concurrent  resolution,  such  as  that 
proposed  by  Senator  Lodge,  would  clearly  be  unconstitutional, 
since  it  would  deprive  the  President  of  his  constitutional  right  to 
approve  or  disapprove  every  act  of  legislative  effect.17  At  the 
most,  such  a  resolution  would  amount  to  nothing  more  than  an 
expression  of  opinion,  and  could  be  entirely  disregarded  by  the 
President.18  Apparently  Senator  Lodge  and  the  Foreign  Re- 
lations Committee  of  the  Senate  recognized  the  impossibility  of 
any  attempt  by  Congress  to  declare  peace  without  the  coopera- 
tion of  the  President,  when  the  Lodge  concurrent  resolution  was 
dropped  and  a  substitute  joint  resolution  was  proposed.19 

Finally,  while  the  Constitution  specifically  gives  Congress  the 
power  to  declare  war,  it  does  not  anywhere  expressly  confer  the 
power  of  declaring  or  making  peace.  Hence  it  is  by  no  means 
certain  that  Congress  has  any  power,  either  by  a  repeal  of  its 
original  declaration,  or  by  an  independent  act,  resolution,  or 
declaration,  to  terminate  a  state  of  war  and  bring  about  a  state 

is  See  Willoughby,  Constitutional  Law,  I,  426. 
IT  Constitution,  Art.  I,  Sec.  7,  01.  3. 

is  Cf.  Quincy  Wright,  in  Columbia  Law  Eev.,  XX,  128-139,  131  (Feb., 
1920). 

i»  Supra,  225,  note  12. 


228  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [228 

of  peace.  A  study  of  the  debates  in  the  Convention  of  1787  will 
throw  some  light  on  the  intention  of  the  makers  of  the  Constitu- 
tion in  that  regard. 

When  the  power  of  declaring  war  was  under  consideration  on 
August  17,  Mr.  Pinkney  opposed  vesting  the  power  in  the  Leg- 
islature but  favored  the  Senate  as  the  best  depository,  saying 
that  "it  would  be  singular  for  one  authority  to  make  war,  and 
another  peace."  Mr.  Ellsworth,  on  the  other  hand,  thought  there 
was  a  material  difference  between  the  cases  of  making  war  and 
declaring  peace,  adding  that  "war  also  is  a  simple  and  overt 
declaration,  peace  attended  with  intricate  and  secret  negotia- 
tions." After  the  power  of  declaring  war  had  been  definite^ 
voted  to  Congress,  Mr.  Butler,  evidently  agreeing  with  Pinkney 
that  the  power  of  making  war  and  peace  should  be  in  the  same 
hands,  moved  to  add  the  words  "and  peace"  after  the  word 
"war,"  thus  giving  to  the  Legislature  the  power  over  both. 
Gerry  seconded  the  motion,  remarking  that  the  ' '  Senate  are  more 
liable  to  be  corrupted  than  the  whole  Legislature."  However, 
the  motion  was  lost  by  unanimous  vote  of  the  States,  the  Con- 
vention thus  taking  a  definite  stand  against  giving  Congress  the 
power  to  make  peace.20 

The  intention  of  the  Convention  as  to  the  proper  location  of 
the  power  to  make  peace  is  further  shown  in  the  debates  and  in 
the  actions  taken  concerning  the  treaty-making  power.  The 
clause  regarding  treaties  as  reported  to  the  Convention  read  as 
follows :  ' '  The  President  by  and  with  the  advice  and  consent  of 
the  Senate  shall  have  power  to  make  Treaties,  but  no  treaty  shall 
be  made  without  the  consent  of  two  thirds  of  the  members  pres- 
ent."  When  this  came  up  for  consideration  on  September  7, 
Mr.  Wilson  attempted  to  have  the  concurrence  of  the  House  of 
Representatives  added  to  that  of  the  Senate,  but  his  motion  was 
lost,  receiving  only  two  affirmative  votes.21  Madison's  motion 
to  except  treaties  of  peace  from  the  two-thirds  provision,  ' '  allow- 
ing them  to  be  made  with  less  difficulty  than  other  treaties, ' '  was 
adopted  unanimously,  whereupon  he  moved  to  authorize  two- 
thirds  of  the  Senate  to  make  treaties  of  peace  without  the  con- 
currence of  the  President.  "The  President,"  he  said,  "would 
necessarily  derive  so  much  power  and  importance  from  a  state 

20 Madison's  Journal  (Hunt  ed.),  II,  188-189. 
21  Ibid.,  327-328. 


229]  POWER  OF  TERMINATING  WAR  IN  UNITED  STATES  229 

of  war  that  he  might  be  tempted,  if  authorized,  to  impede  a 
treaty  of  peace."  Mr.  Butler  seconded  this  motion  and  argued 
strenuously  for  it  ''as  a  necessary  security  against  ambitious 
and  corrupt  Presidents."  Mr.  Gorham  and  Gouverneur  Morris 
opposed  the  motion,  the  latter  holding  "that  no  peace  ought  to 
be  made  without  the  concurrence  of  the  President,  who  was  the 
general  Guardian  of  the  National  interests. ' ' 22  Madison 's  mo- 
tion failed,23  but  the  next  day  the  whole  clause  was  reconsider- 
ed, and  another  distinct  effort  was  made,  under  the  leadership 
of  Mr.  Sherman,  to  require  the  sanction  of  the  Legislature  to 
"rights  established  by  a  treaty  of  peace."  Tho  seconded  by 
Mr.  Morris,  Sherman 's  motion  does  not  appear  even  to  have  been 
acted  upon,  the  final  action  of  the  Convention  being  to  adopt  the 
clause  as  originally  reported,  the  exception  of  treaties  of  peace 
from  the  two-thirds  provision  being  stricken  out.24 

The  discussion  throughout  shows  very  clearly  that  an  over- 
whelming majority  in  the  Convention  thought,  as  did  Ellsworth, 
"that  there  was  a  material  difference  between  the  cases  of  mak- 
ing war  and  declaring  peace, ' ' 25  that  it  did  not  consider  Con- 
gress as  vested  with  the  power  to  make  peace  unless  given  ex- 
press authority.  The  Convention  declined  emphatically  to  give 
Congress  this  express  authority,  but,  on  the  other  hand,  did  con- 
sider the  power  of  making  peace  as  belonging  under  the  treaty- 
making  power  to  the  President  and  Senate.  This  is  also  the  view 
expressed  by  Justice  Story,  when  he  said  that  the  proposal  to  add 
the  power  "to  make  peace"  to  the  power  already  given  to  Con- 
gress "to  declare  war"  was  unanimously  rejected,  "upon  the 
plain  ground  that  it  more  properly  belonged  to  the  treaty-mak- 
ing power. ' ' 26  Ex-Justice  Hughes  recently  made  practically  the 
same  statement,27  and  other  well  known  authorities  on  American 

22  Madison's  Journal  (Hunt  ed.),  II,  330. 

23  Ibid. 

24  Ibid.,  333-334. 

25  Ibid.,  188.     "It  is  not  at  all  necessary  that  the  power  of  declaring 
war  and  that  of  making  peace  are  vested  by  a  Constitution  in  the  same 
hands."     Oppenheim,  International  Law,  II,  283-284.     "The  power  to  de- 
clare war  does  not  necessarily  include  that  of  making  a  treaty  of  peace.  .  . 
They  are  generally  associated  together,  though  not  always. ' '     Baker,  Hal- 
leek's  International  Law,  I,  329. 

2«  Story,  Commentaries  on  the  Constitution,  II,  88. 

27  In  Central  Law  Jour.,  LXXXV,  206  (Sept.  21,  1917). 


230  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [230 

constitutional  law  likewise  hold  that  the  Constitution  vests  the 
power  of  making  peace,  not  in  Congress,  but  in  the  President  and 
the  Senate.28 

It  is  significant  in  this  connection,  not  only  that  the  recent 
claims  to  a  power  in  Congress  of  declaring  peace  are  entirely 
without  precedent  and  contrary  to  the  best  interpretations  of 
the  Constitution,  but  also  that  such  claims  are  refuted  by  specific 
declarations  by  Congress  itself.  Thus,  every  important  legisla- 
tive enactment  of  Congress  during  the  recent  war  which  contain- 
ed any  reference  to  the  conclusion  of  peace,  shows  that  Congress 
itself  contemplated  no  possibility  of  terminating  the  state  of 
war  through  its  own  action  alone.  Two  of  the  measures  —  the 
Food  and  Fuel  Control  Act  and  the  Trading  with  the  Enemy 
Act  —  apparently  considered  the  President  alone  vested  with 
considerable  authority  in  that  regard,  the  former  declaring  that 

zs  For  example,  Schouler  says  that  the  power  of  Congress  under  the  Con- 
federation "embraced  clearly  the  determination  of  both  war  and  peace, 
while  that  of  the  Congress  of  our  Constitution  is  in  expression  confined  to 
war  alone,  since  the  full  treaty-making  power  is  lodged  by  the  latter  in- 
strument (which  makes  no  mention  of  declaring  peace  at  all)  with  the  new 
branch  of  government,  the  Executive,  subject  to  a  two-thirds  ratification  in 
the  Senate."  Constitutional  Studies,  137. 

Likewise,  the  opinion  of  such  distinguished  authorities  as  ex-President 
Taft  and  ex-Attorney-General  Wickersham  is  well  known.  For  a  careful 
statement  by  the  latter  of  the  constitutional  question,  see  N.  T.  Times  Cur- 
rent Hist.  Mag.,  XII,  367-372  (June,  1920).  And  Senator  Sterling  of  South 
Dakota  (Hep.),  tho  he  voted  for  the  Knox  resolution,  made  the  following 
significant  statement  shortly  after  the  presidential  election:  "I  believe, 
from  the  Harding  campaign  speeches,  that  the  first  step  will  be  the  passage 
of  a  peace  resolution  similar  to  the  Knox  resolution.  I  am,  however,  a  little 
hazy  as  to  just  where  we  will  be  left  when  we  have  passed  the  resolution. 
We  declare  a  state  of  peace  with  Germany  and  Austria.  But  without  a 
similar  declaration  on  their  part,  I  do  not  see  that  peace  will  have  been  for- 
mally established.  The  passage  of  a  peace  resolution  by  Congress  is  not 
the  method  of  making  peace  contemplated  by  the  Constitution  of  the  Uni- 
ted States."  Chicago  Tribune  (Staff  Correspondence),  Nov.  22,  1920.  For 
the  contrary  view,  see  especially  the  opinions  of  Senator  Knox  and  Profes- 
sor Corwin,  in  N.  Y.  Times  Current  Hist.  Mag.,  XII,  372-376  (June,  1920), 
and  Mich.  Law  Rev.,  XVIII,  669-675  (May,  1920),  respectively. 

It  is  worthy  of  note  in  this  connection  that  President  Wilson,  in  his  veto 
of  the  Knox  resolution,  ignored  the  constitutional  question  entirely,  basing 
his  veto  rather  on  the  grounds  that  the  passage  of  the  resolution  meant  the 
abandonment  of  our  allies  and  of  the  objects  for  which  we  had  fought  the 
war. 


231]  POWER  OF  TERMINATING  WAR  IN  UNITED  STATES  231 

the  provisions  of  the  act  should  cease  to  be  in  effect  "when  the 
existing  state  of  war  .  .  .  shall  have  terminated,  and  the 
fact  and  date  of  such  termination  shall  be  ascertained  and  pro- 
claimed by  the  President;"  the  latter  that  "the  words  'end  of 
the  war,'  as  used  herein,  shall  be  deemed  to  mean  the  date  of 
proclamation  of  exchange  of  ratifications  of  the  treaty  of  peace, 
unless  the  President  shall,  by  proclamation,  declare  a  prior  date, 
in  which  case  the  date  so  proclaimed  shall  be  deemed  to  be  the 
'end  of  the  war'  within  the  meaning  of  this  Act."  29 

Other  measures  specifically  contemplated  the  termination  of 
the  war  by  means  of  a  treaty  of  peace.  Thus,  the  Emergency 
Shipping  Fund  Act  provided  that  the  authority  granted  in  that 
act  to  the  President  should  cease  "six  months  after  a  final  treaty 
of  peace  is  proclaimed  between  this  Government  and  the  Ger- 
man Empire;"  the  Kailway  Control  Act  required  that  Federal 
control  should  not  continue  longer  than  "one  year  and  nine 
months  next  following  the  date  of  the  proclamation  by  the  Presi- 
dent of  the  exchange  of  ratifications  of  the  treaty  of  peace ; ' '  the 
Overman  Act  was  to  terminate  "six  months  after  the  termina- 
tion of  the  war  by  the  proclamation  of  the  treaty  of  peace,  or  at 
such  earlier  time  as  the  President  may  designate;"  and  the  Con- 
trol of  Communications  Act  provided  that  control  of  the  tele- 
graph and  telephone  systems  "shall  not  extend  beyond  the  date 
of  the  proclamation  by  the  President  of  the  exchange  of  ratifi- 
cations of  the  treaty  of  peace. ' ' 30 

It  seems  clear,  therefore,  that  a  formal  treaty  of  peace  is  the 
only  method  contemplated  by  the  Constitution  for  the  termina- 
tion of  a  foreign  war  and  the  restoration  of  peace,  as  it  has  here- 
tofore been  the  only  method  ever  suggested  or  actually  employed 
in  practise.  The  conclusion  of  peace  rests  therefore,  in  the  Uni- 
ted States,  with  the  President  and  the  Senate,  as  the  treaty-mak- 
ing power. 


29  Act  of  Aug.  10,  1917  (Sec.  24);  Act  of  Oct.  6,  1917  (Sec.  2).  Wig- 
more,  Source-Boole  of  Military  Law  and  War-Time  Legislation,  512,  544. 

so  Act  of  June  15,  1917;  Act  of  Mar.  21,  1918  (Sec.  14);  Act  of  May 
20,  1918  (Sec.  1) ;  Joint  Resolution  of  July  16,  1918.  Wigmore,  op.  cit., 
484,  583,  586,  602. 


CHAPTER  XIV 

POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE 

Since  the  conclusion  of  a  treaty  of  peace  is  the  only  method  by 
which  a  foreign  war  may  be  terminated  by  the  United  States,1 
it  is  necessary  to  note  the  powers  of  the  President  in  that  connec- 
tion. In  the  first  place,  while  the  Senate  shares  the  treaty-mak- 
ing power  with  the  President  and  therefore  enjoys  considerable 
power  in  connection  with  the  definitive  conclusion  of  peace,  cer- 
tain preliminaries  may  be  undertaken  that  are  within  the  prov- 
ince of  the  President  alone.  These  are  the  armistice  and  the  pre- 
liminary protocol. 

An  armistice,  strictly  speaking,  merely  provides  for  a  tempor- 
ary suspension  of  hostilities,  but,  if  general  in  its  scope,  it  is 
usually  entered  into  "with  a  view  to  negotiations  for  peace;"2 
while  a  preliminary  protocol  is  a  preliminary  settlement  indicat- 
ing the  lines  along  which  the  peace  negotiations  are  to  be  con- 
ducted.3 The  two  cannot  always  be  clearly  differentiated,  how- 
ever, in  that  the  latter  may  also  provide  for  the  suspension  of 
hostilities,  and  both  are  generally  used  ''as  devices  of  the  execu- 
tive department  for  reaching  a  basis  of  negotiations  without 
awaiting  the  difficult  and  delayed  conferences  necessary  for  the 
final  treaty. ' '  *  Neither  requires  the  ratification  of  the  Senate 
before  going  into  effect,  each  being  considered  as  "a  proper  ex- 
ercise of  his  war  powers  by  the  President. ' ' 5  Both  illustrate  also 
the  power  of  the  President  to  enter  into  important  international 
agreements  without  the  consent  of  the  Senate,  in  that  through 

1  See  preceding  chapter. 

2  Lawrence,  Principles  of  International  Law,  564-567 ;   Davis,  Elements 
of  International  Law  (4th  ed.),  341. 

s  Cf.  Benton,  International  Law  and  Diplomacy  of  the  Spanish-American 
War,  226-228. 
*  Ibid.,  227. 
5  Foster,  Practice  of  Diplomacy,  318. 

232 


233]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE        233 

them  he  may  not  only  determine  as  to  the  continuance  or  term- 
ination of  hostilities,  but  may  also  lay  down  the  conditions  to 
be  imposed  upon  the  hostile  power  and  practically  commit  the 
nation  to  a  particular  line  of  policy  in  the  final  peace  confer- 
ence. 

President  Madison  sought  in  this  way  to  bring  about  a  ter- 
mination of  the  war  of  1812  almost  as  soon  as  it  was  begun.  Jona- 
than Russell,  the  American  charge  d'affaires  in  London,  acting 
under  instructions  from  Secretary  of  State  Monroe  issued  only 
a  few  days  after  the  declaration  of  war  by  Congress,6  made  two 
attempts  to  arrange  an  armistice  in  the  early  fall  of  1812. 7  Altho 
these  attempts  were  unsuccessful,  the  British  government  declin- 
ing to  consent  to  an  armistice  on  the  conditions  named,  they 
were  useful  in  clarifying  the  issues  of  the  war,  in  that  Monroe 
selected  from  among  the  ' '  many  just  and  weighty  causes  of  com- 
plaint against  Great  Britain, ' '  the  orders  in  council  and  the  im- 
pressment of  seamen  as  those  "considered  to  be  of  the  highest 
importance. ' ' 8 

The  power  of  the  Executive  thus  to  define  the  issues  of  the  war 
and  to  determine  how  far  to  yield  in  the  interests  of  peace,  was 
further  illustrated  when  the  counter-proposal  of  the  British 
Government  for  a  cessation  of  hostilities  was  rejected,  on  the 
ground  that  it  was  based  on  the  repeal  of  the  orders  in  council 
alone  and  disregarded  the  question  of  impressment.9  "It  will 
be  seen  from  this,"  says  an  eminent  historian,  "that  Madison 
and  Monroe  continued  the  war  on  the  question  of  impressment 
alone."10 

The  power  of  the  President,  as  Commander-in-Chief,  not  only 
to  terminate  hostilities  by  arranging  an  armistice,  but  also  to 
formulate  such  conditions  for  the  armistice  as  to  bind  the  nation 
to  a  particular  policy  in  the  peace  conference,  was  clearly  demon- 
strated in  1898,  when  in  response  to  the  Spanish  request  for 

e  Monroe  to  Eussell,  June  26,  1812.  Am.  State  Papers,  For.  Bel,  III, 
585-586;  see  also  instructions  of  July  27.  Ibid.,  586. 

7  Russell  to  Lord  Castlereagh,  Aug.  24,  Sept.  12,  1812.     Ibid.,  589,  591. 

s  Ibid.,  585. 

a  Warren  to  Monroe,  Sept.  30,  1812;  Monroe  to  Warren,  Oct.  27,  1812. 
Ibid.,  595-597. 

loChanning,  History  of  the  United  States,  IV,  480;  cf.  Updyke,  Diplom- 
acy of  the  War  of  1812,  136-139. 


234  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [234 

terms  of  peace,  President  McKinley  embodied  his  conditions  in 
the  protocol  of  August  12,  which  he  authorized  the  Secretary  of 
State  to  sign  on  the  part  of  the  United  States.11 

This  protocol  not  only  provided  for  an  immediate  suspension 
of  hostilities  and  a  subsequent  peace  conference  to  arrange  the 
final  terms,  but  stipulated  that  Spain  should  relinquish  her  claim 
to  sovereignty  over  Cuba,  cede  Porto  Rico  and  an  island  in  the 
Ladrones  to  the  United  States,  and  evacuate  these  places  im- 
mediately. The  final  disposition  of  the  Philippines  was  to  be 
left  to  the  peace  conference,  the  United  States  meanwhile  to  oc- 
cupy and  hold  the  city,  bay,  and  harbor  of  Manila.12  The  pro- 
tocol thus  took  on  the  character  of  much  more  than  a  preliminary 
agreement  governing  the  termination  of  hostilities,  but  commit- 
ted the  United  States  to  a  certain  very  definite  policy  in  the  peace 
conference  and  approached  very  closely  to  a  definitive  treaty  of 
peace.13 

Similarly,  the  armistice  conditions  imposed  upon  Austria- 
Hungary  and  Germany  by  President  Wilson  in  1918,14  not  only 
laid  down  terms  which  safeguarded  the  victory  of  the  Allies  in 
a  military  and  naval  sense,  but,  as  embodying  the  famous  ' '  four- 
teen points,"  were  generally  understood  to  have  committed  the 
United  States  to  a  definite  political  policy  in  the  peace  confer- 
ence, for  his  supposed  departure  from  which  in  that  conference 
the  President  has  since  undergone  the  bitterest  criticism. 

Having  the  power,  through  the  armistice  and  the  preliminary 
protocol,  thus  to  terminate  hostilities  and  to  a  considerable  ex- 
tent define  the  future  peace  conditions,  the  President  may  also, 
on  his  own  authority  alone,  undertake  measures  which  presume 
the  virtual  ending  of  the  war  and  the  existence  of  a  state  of 
peace.  President  McKinley,  having  proclaimed  the  suspension 
of  hostilities  with  Spain  in  accordance  with  the  protocol  of  Au- 
gust 12,  1898,  immediately  raised  the  blockade  of  the  ports  of 
Cuba  and  Porto  Rico,  and  on  August  18  ordered  100,000  of  the 
volunteers,  or  as  near  that  number  as  practicable,  to  be  mustered 

11  For.  Eel.  1898,  825. 

12  See  text  of  protocol.     Ibid.,  828-830. 

is  Cf.  J.  B.  Moore,  in  Pol.  Sci.  Quar.,  XX,  391-392;  Moore's  Digest, 
V,  213;  Crandall,  Treaties:  Their  Making  and  Enforcement,  103-104. 

i*  The  texts  of  these  may  be  conveniently  found  in  N.  Y.  Times  Current 
Hist.  Mag.,  IX,  364-368,  396-397  (Dec.,  1918). 


235]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE       235 

out.15  President  Wilson  likewise  ordered  a  general  demobiliza- 
tion immediately  after  the  signing  of  the  armistice,18  and  lifted 
many  of  the  war-time  restrictions  before  the  definitive  conclu- 
sion of  peace,17  thus  assuming,  as  he  might,  that  the  armistice 
was  something  more  than  a  mere  suspension  of  hostilities. 

It  might  seem  that  the  President,  through  such  exercise  of 
power  as  has  been  noted,  could,  of  his  own  authority  alone,  not 
only  terminate  hostilities,  but  bring  about  an  actual  termination 
of  the  state  of  war.  Thus,  in  1898,  many  neutral  powers  treated 
the  protocol  of  August  12  as  practically  ending  the  war  between 
the  United  States  and  Spain,  and  permitted  public  vessels  of  the 
United  States  to  enter  and  use  their  ports  freely  as  in  time  of 
peace.18  So  also  it  was  reported  in  March,  1919,  that  the  Amer- 
ican peace  delegation  at  Paris  was  considering  bridging  over  the 
period  between  the  signing  of  the  peace  treaty  and  its  ratification 
by  the  Senate,  by  a  modus  vivendi  declaring  the  war  ended  as 
of  date  of  signature,  so  as  to  terminate  the  war  legislation  and 
enable  an  earlier  return  to  normal  conditions.19 

It  was  even  solemnly  held  in  a  court  decision  rendered  at  about 
the  same  time,  that  the  "war  was  brought  to  a  close  when  the 
armistice  was  signed, ' '  because  President  Wilson,  in  announcing 
the  armistice  to  Congress,  used  the  words,  ' '  The  war  thus  comes 
to  an  end. "  20  In  numerous  other  cases  involving  war-time  legis- 
lation eminent  counsel  argued  that  the  state  of  war  was  terminat- 
ed by  the  signing  of  the  armistice  and  other  acts  of  the  Presi- 
dent; and  on  June  10,  1919,  Representative  Dyer  (Massachus- 
etts), a  member  of  the  House  Judiciary  committee,  cabled  the 
President  to  "exercise  the  authority  which  I  am  sure  you  pos- 

15  Message  to  Congress,  Dec.  5,  1898.  Eichardson,  op.  cit.,  X,  174-175. 

IB  Demobilization  was  virtually  completed  by  Oct.  14,  1919,  the  army 
having  by  that  time  been  reduced  to  less  than  300,000  men.  N.  Y.  Times 
Current  Hist.  Mag.,  XI,  230  (Nov.,  1919). 

IT  Such  as  restrictions  on  the  use  of  food  and  fuel,  on  trade  and  industry, 
and  on  the  manufacture  of  beverages.  Supra,  206,  note  20. 

is  Moore's  Digest,  VII,  335. 

19  Associated  Press  dispatch,  Mar.  15,  1919. 

20  Federal  Judge  Walter  Evans,  in  a  decision  handed  down  in  Louis- 
ville, Ky.,  Mar.  24,  1919.   Reported  in  Chicago  Tribune,  Mar.  25,  1919.  The 
peace  resolution  passed  by  the  House,  Apr.  9,  1920,  likewise  referred  to 
these  words  of  the  President  as  authority  for  declaring  the  war  ended. 
Supra,  226,  note  12. 


236  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [236 

sess"  to  proclaim  the  war  ended  and  demobilization  completed, 
and  thereby  prevent  war-time  prohibition  from  going  into  ef- 
fect.21 

However,  the  better  opinion  is  that  the  President  alone  can- 
not, by  a  protocol,  proclamation,  or  other  act,  bring  about  the 
termination  of  a  state  of  war  and  the  existence  of  a  state  of 
peace.  Thus,  Attorney-General  Griggs  in  1898  held  that  the 
signing  of  the  protocol  of  August  12  and  the  suspension  of  hos- 
tilities did  not  terminate  the  state  of  war  between  the  United 
States  and  Spain;22  Attorney-General  Palmer  likewise  ruled  in 
1919  that  a  state  of  war  could  not  be  terminated  by  act  of  the 
President  alone,  but  only  by  a  treaty  of  peace;23  and  President 
Wilson  himself  declined  to  attempt  any  such  exercise  of  power, 
declaring  "not  only  that  in  my  judgment  I  have  not  the  power 
by  proclamation  to  declare  that  peace  exists,  but  that  I  could 
in  no  circumstances  consent  to  such  a  course  prior  to  the  ratifi- 
cation of  a  formal  treaty  of  peace. ' ' 24 

Finally,  the  courts  have  definitely  decided  that  the  signing 
of  an  armistice  is  not  equivalent  to  the  termination  of  a  state  of 
war.  Judge  Hand,  of  the  United  States  District  Court  of  New 
York,  pointed  out  that  "so  long  as  the  treaty  of  peace  is  not 
ratified,  there  is  some  chance  of  the  resumption  of  hostilities," 
even  tho  that  chance  might  be  very  slight;25  while  the  Supreme 
Court  likewise  unanimously  held  that  the  cessation  of  hostilities 
in  the  recent  war  by  means  of  the  armistice  did  not  mean  the 
' '  conclusion  of  the  war, ' '  and  pointed  to  various  ' '  facts  of  public 
knowledge"  which  showed  the  war  emergency  to  be  still  in  exist- 
ence.26 

In  the  definitive  conclusion  of  peace  through  a  formal  treaty, 
the  President,  altho  he  is  of  course  required  to  obtain  the  ' '  advice 

21  Chicago  Tribune,  June  11,  1919. 

22  22  Op.  Atty.  Gen.,  190,  191. 

23  See  his  ruling  on  the  War-Time  Prohibition  Act,  in  N.  T.  Times,  Aug. 
28,  1919;  also  his  telegram  to  Judge  Evans,  in  case  cited  in  this  chapter, 
note  20. 

2*  Letter  to  Senator  Fall,  Aug.  20,  1919.     N.  T.  Times,  Aug.  22,  1919. 

25  See  decisions  rendered  by  him,  in  cases  involving  the  validity  of  war- 
time prohibition  and  wartime  cable   control,  Jan.   20   and  Aug.   20,   1919. 
N.  r.  Times,  Jan.  21,  Aug.  21,  1919. 

26  Hamilton  v.  Kentucky  Distilleries  and  Warehouse  Co.,  251  U.  S.,  146 
(1919). 


237]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE        237 

and  consent"  of  the  Senate  before  putting  a  treaty  into  effect,27 
has  practically  complete  control  of  all  the  other  functions  and 
processes  of  treaty-making.28  In  the  first  place,  the  President 
alone  may  appoint  the  commissioners  who  are  to  negotiate  the 
treaty  of  peace,  and  he  is  not  required  to  submit  their  nomina- 
tions to  the  Senate  for  confirmation.  This  power  rests  upon  the 
now  well-recognized  right  of  the  President  to  use,  at  his  discre- 
tion, special  agents  of  a  diplomatic  or  semi-diplomatic  "charac- 
ter—  a  right  which  one  writer29  points  out  has  four  bases:  (1) 
a  presumptive  legal  basis  in  the  acts  of  Congress  giving  the  Presi- 
dent a  contingent  fund  which  he  may  expend  for  foreign  inter- 
course without  specific  accounting;30  (2)  the  recognized  right 
of  the  President  to  take  the  initiative  in  foreign  affairs;31  (3) 
the  general  practise  of  governments  under  international  law;32 
and  (4)  necessity.33 

Prior  to  1815,  the  names  of  such  special  agents  or  commission- 
ers chosen  to  negotiate  treaties  were  generally  submitted  to  the 

27  Constitution,  Art.  II,  Sec.  2,  Cl.  2. 

28  "  As  for  making  and  declaring  peace,  the  power     .     .     .     pertains  no 
longer  to  Congress,  but  is  lodged  for  negotiation  and  conclusion  in  the 
President."     Schouler,   Constitutional  Studies,   140.     "As  the  war  power 
is  shared  between  the  President  and  Congress,  but  Congress  does  not  share 
in  the  executive  power,  the  breadth  of  the  President's  prerogatives  as  to 
the  closing  of  war  becomes   of  special  importance.     The  limits  imposed 
directly  by  the  Constitution  are  few,  its  main  one  being  the  requirement  of 
the  consent  of  the  Senate     ...     To  make  a  declaration  of  war  requires 
the  assent  of  Congress  as  well  as  of  the  President.     To  end  a  war,  it  is 
enough  for  him  to  obtain  the  assent  of  the  Senate,  if  he  acts  under  the 
treaty-making  power."     S.  E.  Baldwin,  in  Am.  Jour.  Int.  Law,  XII,  13. 

29  H.  M.  Wriston,  "Presidential  Special  Agents  in  Diplomacy,"  in  Am. 
Pol.  Sei.  Rev.,  X,  481-499,  esp.  482-488. 

so  As  the  earliest  acts  of  this  sort  may  be  mentioned  the  acts  of  July 
1,  1790;  Feb.  9,  17&3;  May  1,  1810.  Annals  of  Cong.,  I  Cong.,  II,  App., 
2232;  2  Cong.,  App.,  1411;  11  Cong.,  II,  App.,  2585. 

31  Supra,  ch.  II. 

32  < '  There  seems  to  be  no  reason  why  the   government  of  the  United 
States  cannot,   in   conducting  its   diplomatic   intercourse   with   other  coun- 
tries, exercise  powers  as  broad  and  general  or  as  limited  and  peculiar,  or 
special,  as  any  other  government.     .     .     In  fact,  there  has  been  no  limit 
placed  upon  the  use  of  a  power  of  this  kind,  except  the  discretion  of  the 
sovereign  or  ruler  of  the  country. ' '     Report  of  Senate  Committee  on  For- 
eign Relations,  1893,  quoted  by  H.  M.  Wriston,  op.  cit.,  486-487. 

as  See  H.  M.  Wriston,  op.  cit.,  487-488. 


238  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [238 

Senate  for  confirmation.34  According  to  this  practise,  President 
Madison  even  summoned  the  Senate  in  special  session  in  May, 
1813,  to  consider  his  course  in  accepting  the  Russian  offer  of 
mediation,  and  to  confirm  the  peace  commissioners  he  had  al- 
ready appointed  and  sent  on  their  way.  The  Serate  confirmed 
the  nominations  of  John  Quincy  Adams  and  Senator  James  Bay- 
ard, but  rejected  that  of  Secretary  of  the  Treasury  Albert  Gal- 
latin,  on  the  ground  that ' '  in  the  opinion  of  the  Senate,  the  pow- 
ers and  duties  of  the  Secretary  of  the  Department  of  the  Treas- 
ury and  those  of  an  Envoy  Extraordinary  to  a  Foreign  Power, 
are  so  incompatible  that  they  ought  not  be  and  remain  united  in 
the  same  person. ' ' 35  Upon  the  failure  of  this  attempt  to  open 
peace  negotiations,  the  President  appointed  another  peace 
commission  in  January,  1814,  again  submitting  the  names  to  the 
Senate  for  confirmation.36 

Since  1815,  however,  it  has  been  very  unusual  to  submit  the 
appointments  of  treaty  negotiators  to  the  Senate  at  all,37  and 
especially  so  with  regard  to  peace  commissioners.  President 
Polk  even  felt  it  necessary  to  keep  secret  for  a  time  his  selection 
of  Nicholas  Trist  as  peace  commissioner  in  1847,38  altho  he  vest- 
ed Trist  with  unusual  powers,  not  only  to  accompany  the  army 
and  negotiate  peace  at  a  favorable  opportunity,  but  also  to  con- 
trol the  military  and  naval  operations.39  His  later  appointments 
of  Sevier  and  Clifford  to  negotiate  the  final  treaty  were,  how- 
ever, submitted  to  the  Senate  for  confirmation,  tho  it  should  be 
noted  that  Sevier  was  in  reality  selected  for  the  permanent  post 

s*  Crandall,  Treaties:  Their  Making  and  Enforcement,  75-76. 
SB  Updyke,  Diplomacy  of  the  War  of  1812,  146-148. 

36  This   commission   consisted   of  John   Quincy  Adams,   James   Bayard, 
Henry  Clay,  Jonathan  Russell,  and  Albert  Gallatin,  the  first  four  names  being 

submitted  to  the  Senate  on  Jan.  14  and  confirmed  Jan.  18.  Gallatin 'a 
name  was  added  on  Feb.  8,  and  confirmed  the  next  day  without  serious  op- 
position, he  being  no  longer  in  the  Cabinet.  Ibid.,  167-168. 

37  For  instances  of  such  appointments  without  the  consent  of  the  Senate, 
see  Moore '&  Digest,  IV,  453-457. 

SB  Diary  of  James  K.  Polk,  II,  468,  483;  cf.  II,  262,  268,  273. 

SB  "Should  he  (Trist)  make  known  to  you  in  writing  that  the  contingency 
haa  occurred  in  consequence  of  which  the  President  is  willing  that  further 
active  military  operations  should  cease,  you  will  regard  such  notice  as  a 
direction  from  the  President  to  suspend  them  until  further  orders  from 
this  department."  Secret  orders  to  Gen.  Scott  and  Commodore  Perry, 
quoted  by  H.  M.  Wriston,  op.  cit.,  495. 


239]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE        239 

of  minister  to  Mexico  with  authority  to  complete  the  peace 
treaty  negotiations,  and  that  Clifford  was  added  merely  because 
of  Sevier's  illness.40  President  McKinley  likewise  appointed 
the  peace  commissioners  of  1898  without  consulting  the  Senate  ;41 
while  President  Wilson,  in  1918,  altho  Congress  was  in  session, 
merely  " announced"  the  peace  delegation  in  a  White  House 
statement,  and  took  the  unprecedented  step  of  including  him- 
self.42 

Having  the  power  to  appoint  peace  commissioners  with  or 
without  the  consent  of  the  Senate,  the  President  is  not  restrict- 
ed in  his  choice,  but  may  select  whom  he  will,  without  qualifica- 
tion. Public  opinion  seems  to  expect,  however,  that  distinguish- 
ed men  of  both  parties  should  be  chosen,  and  one  of  the  severest 
criticisms  of  President  Wilson  was  his  apparent  selection  of  men 
who  would  reflect  merely  his  own  personal  views.  President 
Polk  likewise  found  great  difficulty  in  selecting  a  commissioner 
satisfactory  to  the  country,  probably  one  reason  for  the  choice  of 
a  person  in  a  somewhat  obscure  position.43 

40  Diary  of  James  K.  Polk,  III,  378-383,  389-391.     The  treaty  had  been 
ratified  by  the  Senate,  Mar.  10,  1848,  with  amendments  that  required  new 
negotiations. 

41  However,  the  commissioners  were  appointed  and  the  treaty  of  peace 
completed  during  a  recess  of  Congress.     But  in  1901,  President  McKinley, 
without  consulting  the  Senate,  altho  it  was  then  in  session,  appointed  W. 
W.  Rockhill  as  special  commissioner  to  China,  invested  with  full  power  to 
negotiate  with  the  representatives  of  the  other  allied  powers  and  of  China 
concerning  a  settlement  of  the  questions  arising  out  of  the  Boxer  Eebellion. 

42  Together  with  Secretary  of  State  Lansing,  Henry  White,  Edward  M. 
House,  and  Gen.  Tasker  H.  Bliss.  Official  U.  S.  Bulletin,  Nov.  19,  Nov.  30, 
1918.     President  Wilson's  decision  to  participate  personally  in  the  peace 
negotiations  at  Paris  raised  again   the   interesting,   tho   purely   academic 
question  as  to  the  President's  constitutional  right  to  leave  the  jurisdiction 
of  the  United  States  during  his  term  of  office.     It  is  worthy  of  note  that 
Hamilton's  plan  for  a  constitution  definitely  contemplated  the  consent  of 
Congress  for  the  absence  of  the  President  from  the  United  States  and 
even  then  for  the  exercise  of  his  powers  by  the  Vice-  President  during  such 
absence.     See  Elliot's  Debates,  V,  587.     The  law  and  precedents  governing 
the  President's  right  to  leave  the  country  are  discussed  by  Park  Benjamin, 
in  The  Independent,  Mar.  29,  1919.    See  also  opinion  of  ex-Attorney  Gener- 
al Wickersham,  in  N.  Y.  Times,  Nov.  27,  1918;  and  Taft,  Our  CUef  Magis- 
trate and  His  Powers,  50-51. 

43  Diary  of  James  K.  Polk,  II,  466.  Nicholas  Trist  was  Chief  Clerk  of 
the  Department  of  State  when  appointed  peace  commissioner. 


240  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [240 

There  seems  also  to  be  a  considerable  body  of  opinion  that, 
since  the  Senate  is  constitutionally  a  coordinate  part  of  the 
treaty-making  power,  it  should  be  represented  on  the  commis- 
sion to  negotiate  peace.  President  Madison  probably  deferred 
to  this  sentiment  in  appointing  Senator  Bayard,  a  Federalist, 
and  Henry  Clay,  formerly  in  the  Senate  but  at  that  time  Speak- 
er of  the  House,  to  the  peace  commission  of  1814.43a  President 
McKinley  went  so  far  in  that  respect  as  to  give  the  Senate  a  ma- 
jority on  the  peace  commission  of  1898  ;44  and  President  Wilson 's 
entire  disregard  of  the  Senate  in  making  up  the  peace  commis- 
sion in  1918  called  forth  especially  severe  criticism,  as  tho  it 
were  an  utter  contempt  for  the  constitutional  position  and  rights 
of  that  body. 

As  a  matter  of  fact,  tho  senators  have  been  quite  commonly 
appointed  on  commissions  to  negotiate  treaties,  including  the 
peace  treaty  of  1898,  there  is  excellent  authority  for  the  view 
that  their  appointment  to  such  missions  is  not  only  inexpedient 
and  improper,  but  also  contrary  to  the  constitutional  principle 
that  no  civil  officer  of  the  United  States  shall  at  the  same  time 
be  a  member  of  either  house  of  Congress.45  President  Monroe, 
for  example,  stated  in  1818  that  he  "did  not  approve  the  prin- 
ciple of  appointing  members  of  Congress  to  foreign  missions,  but, 
as  it  had  been  established  in  practice  from  the  first  organization 

*3aBoth  Bayard  and  Clay,  however,  evidently  considered  it  improper 
to  combine  the  functions  of  peace  commissioner  and  member  of  Congress, 
as  both  resigned  their  respective  seats  immediately  upon  appointment  to 
the  peace  commission.  In  fact,  Bayard  wrote  to  Gov.  Haslett  of  Delaware, 
under  date  of  May  3,  1813,  that  "the  acceptance  of  the  appointment  is  on 
my  part  an  implied  and  virtual  resignation  of  my  seat  in  the  Senate.  .  . " 
See  Report,  Am.  Hist.  Assn.  1913,  II,  221 ;  Clay  &  Oberholtzer,  Henry  Clay, 
75. 

4*Cushman  K.  Davis  (Minn.),  Eepublican,  chairman  of  the  Senate  Com- 
mittee on  Foreign  Relations;  Wiliam  P.  Frye  (Me.),  Republican;  and 
George  Gray  (Del.),  Democrat.  The  other  members  of  the  commission  were 
William  R.  Day,  who  resigned  as  Secretary  of  State  in  order  to  head  the 
commission,  and  Whitelaw  Reid,  former  minister  to  France. 

«  ' '  No  senator  or  representative  shall,  during  the  time  for  which  he  was 
elected,  be  appointed  to  any  civil  office  under  the  authority  of  the  United 
States,  which  shall  have  been  created,  or  the  emoluments  whereof  shall  have 
been  increased  during  such  time;  and  no  person  holding  any  office  under 
the  United  States  shall  be  a  member  of  either  House  during  his  contin- 
uance in  office."  Constitution,  Art.  I,  Sec.  6,  Cl.  2. 


241]       POWERS  WITH  REGABD  TO  A  TREATY  OP  PEACE       241 

of  the  present  Government,  and,  as  the  members  of  Congress 
would  not  be  satisfied  with  the  opposite  principle,  he  did  not 
think  it  proper  to  make  it  a  rule  for  himself. ' ' 46 

The  Senate  itself  has  upon  occasion  taken  a  positive  stand 
against  the  participation  of  members  of  that  body  in  treaty  nego- 
tiations. Thus,  in  1898,  the  Senate  declined  to  confirm  the  nom- 
inations of  Senators  Hoar,  Cullom,  and  Morgan  to  the  Hawaiian 
Commission  "upon  the  ground  that  it  would  no  longer  consent 
to  the  selection  of  members  of  this  body  to  negotiate  important 
treaties  that  were  to  be  reported  to  the  Senate."47  In  fact,  the 
feeling  in  the  Senate  was  at  that  time  so  strong  against  that  prac- 
tise that  the  Judiciary  Committee  "almost  unanimously"  con- 
templated reporting  a  bill  or  resolution  prohibiting  it  for  the 
future,  and  only  refrained  from  doing  so  because  it  was  thought 
that  such  action  might  be  construed  as  a  discourtesy  to  those 
senators  who  had  acted  under  such  appointments.  The  com- 
mittee instructed  Senator  Hoar,  however,  to  see  the  President 
and  say  that  it  hoped  the  practise  would  be  discontinued;  to 
which  suggestion  the  President  responded  by  assuring  Senator 
Hoar  that  it  would  not  pccur  again,  altho  he  called  attention  to 
the  difficulty  of  getting  suitably  qualified  men  outside  of  the 
Senate  or  House.48 

In  1903  the  question  again  came  before  the  Senate,  and  the 
judgment  was  almost  unanimously  as  before.  Senator  Tillman 
said:  "We  had  the  Paris  treaty  or  the  Spanish  or  Philippine 
treaty  negotiated  by  Senators  whose  votes,  no  doubt,  were  influ- 
enced by  the  fact  that  they  were  on  that  commission.  I  do  not 
see  why  we  should  palter  with  this  thing  any  longer.  Probably 
we  cannot  convince  the  Executive  that  this  practise  is  improper 

46  Memoirs  of  John  Quincy  Adams,  IV,  72.     Compare  the  attitude  of 
Bayard  and  Clay  in  1813.  Supra,  note  43a. 

47  Statement  of  Senator  Hale,  in  U.  S.  Senate,  Feb.  26,  1903.  Cong.  Rec- 
ord, 57  Cong.,  2  Sess.,  2695.     The  senators  nevertheless  served,  their  posi- 
tion being  stated  by  Senator  Cullom  as  follows :     ' '  We  went  out  by  appoint- 
ment of  the  President;  but  there  was  a  doubt  about  it,  and  the  Judicial 
Committee  of  the  Senate,  in  view  of  the  doubtful  attitude  which  we  occu- 
pied as  receiving  appointments  from  the  President  while  being  members  of 
the  Senate,  thought  it  best  not  to  act  upon  our  confirmation  at  all;  and 
they  were  not  acted  upon.     We  were  never  confirmed  by  the  Senate  as  a 
matter  of  fact."    Ibid.,  2695. 

48  Ibid.,  2695,  2698. 


242  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [242 

and  contrary  to  the  will  of  the  Senate,  unless  it  is  forbidden  by 
law. ' '  He  therefore  offered  an  amendment  to  the  provision  un- 
der discussion  providing,  "that  in  making  appointments  to  any 
such  commission  no  Senator  or  Member  of  the  House  shall  be 
eligible."49 

Altho  the  amendment  was  stricken  out  on  a  point  of  order, 
Senator  Hale  protested  vigorously  against  the  practise ;  Senator 
Bacon  said  it  was  ' '  distinctly  in  opposition  to  the  express  policy, 
if  not  the  express  command  of  the  Constitution  of  the  United 
States;"  Senator  Hoar  concurred  in  this  view,  and  in  addition 
stated  that  "hardly  a  more  dangerous  practice  can  be  conceiv- 
ed than  this  one ; ' '  and  Senator  Allison  said,  ' '  I  am  in  sympathy 
with  the  general  suggestion.  .  .  I  do  not  believe  a  Senator  or 
Representative  should  be  appointed. ' ' 50  Senators  Foraker  and 
Teller  were  not  ready  to  restrict  senators  from  serving  on  such 
commissions  under  all  circumstances,  but  thought  the  practise 
as  a  rule  ' '  reprehensible. "  51  Of  all  those  who  participated  in 
the  discussion,  only  Senators  Aldrich,  Platt  (Connecticut),  and 
McComas  defended  the  practise,  and  opposed  any  limitation  on 
such  service  by  members  of  the  Senate.62 

It  would  therefore  seem  that  the  recent  outbursts  of  criticism 
against  President  Wilson,  in  the  Senate  and  elsewhere,  for  his 
failure  to  appoint  members  of  that  body  to  the  peace  commission, 
have  had  little  substantial  basis,  and  that,  as  a  matter  of 
fact,  while  criticism  of  the  personnel  of  the  commission  might 
be  justified  on  other  grounds,  that  based  on  any  constitutional 
or  inherent  right  of  the  Senate  to  representation  on  such  com- 
mission is  condemned,  both  by  the  Constitution  and  by  the  un- 
prejudiced opinion  of  the  Senate  itself. 

In  the  second  place,  the  President  has  entire  control  of  the 
peace  negotiations  on  the  part  of  the  United  States.  He  lays 
down  the  principles  that  are  to  form  the  basis  of  negotiation,  he 

49  Cong.  Eecord,  57  Cong.,  2  Sess.,  2696.  The  provision  under  consid- 
eration was  one  in  the  Sundry  Civil  bill  authorizing  the  appointment  of  a 
commission  to  negotiate  concerning  rates  of  exchange  between  silver  and 
gold  using  countries. 

so  Ibid.,  2695,  2696,  2697,  2698. 

5i7&«Z.,  2696,  2697. 

52  Ibid.,  2696,  2698.  Apparently  the  positive  assurance  by  Senator  Aid- 
rich  that  no  such  appointments  would  be  made  in  the  case  under  considera- 
tion had  a  great  deal  to  do  with  the  abandonment  of  a  specific  prohibition. 


243]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE       243 

determines  whether  to  yield  or  to  stand  firm  on  a  disputed  point, 
and  he  decides  the  wisdom  and  expediency  of  compromises.  The 
power  and  responsibility  of  the  President  in  these  respects  are 
the  same,  whether  he  directs  the  negotiations  from  Washington, 
as  did  McKinley  in  1898,  or  himself  participates  in  the  peace 
conference,  as  did  Wilson  in  1919.  His  power  is  only  the  more 
strikingly  apparent  in  the  latter  case. 

President  McKinley  was  constantly  in  touch  with  the  peace 
commissioners  at  Paris  in  1898,  and  did  not  hesitate  to  make  new 
demands  and  impose  additional  conditions  during  the  progress  of 
the  negotiations,  even  tho  he  was  not  personally  present.  With 
regard  to  the  disposition  of  the  Philippines,  for  example,  con- 
cerning which  the  Spanish  commissioners  had  expected  an  op- 
portunity to  negotiate,  President  McKinley 's  original  instruc- 
tions were  to  demand  the  cession  of  the  island  of  Luzon  only. 
Later,  however,  additional  instructions  were  sent  that  "the  ces- 
sion must  be  of  the  whole  archipelago  or  none.  The  latter  is 
wholly  inadmissible,  and  the  former  must  therefore  be  required. ' ' 
The  American  commission  was  divided  as  to  the  wisdom  and  jus- 
tice of  this  demand,53  and  sought,  moreover,  to  rest  the  claim  of 
the  United  States  to  any  part  of  the  Philippines  on  the  grounds 
of  indemnity,  the  welfare  of  the  islands,  the  "broken  power  of 
Spain, ' '  and  the  ' '  anarchy ' '  that  would  result  from  our  complete 
withdrawal ;  while  the  President  apparently  desired  to  press  the 
claim  "by  right  of  conquest,"  holding  that  the  conquest  of  the 
entire  archipelago  had  been  accomplished  by  Dewey's  destruc- 
tion of  the  Spanish  fleet  in  Manila  Bay.  In  both  matters,  the 
commission  yielded,  of  course,  to  the  views  of  the  President.54 
President  Wilson's  "domination"  of  the  peace  commission  of 
1919  was  not  more  complete,  nor  is  there  anything  improper  about 

sa  See  For.  Eel.  1898,  932-935,  945-948. 

s*  Benton,  International  Law  and  Diplomacy  of  the  Spanish- American 
War,  241,  243;  See  For.  Eel.  1898,  935,  937,  940,  941.  A  recent  interesting 
explanation  of  President  McKinley 's  demand  for  the  whole  of  the  Philip- 
pines is  to  the  effect  that  while  his  mind  was  not  yet  made  up  on  the  point, 
he  received  a  communication  from  Lord  Salisbury  warning  him  that  Ger- 
many was  preparing  to  take  over  the  islands  if  the  United  States  with- 
drew, that  such  a  step  would  probably  precipitate  a  world  war,  and  that 
in  the  interests  of  peace  and  harmony  it  would  be  best  for  the  United 
States  to  retain  the  whole  group.  Latane,  From  Isolation  to  Leadership, 
85. 


244  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [244 

such  domination,  since  it  is  the  President  who  is  alone  respon- 
sible for  the  results  of  the  negotiations. 

The  Senate  has,  of  course,  the  right  to  "advise  and  consent" 
to  all  treaties,  and  that  has  sometimes  been  interpreted  to  mean 
that  the  Senate  has  a  right  to  "advise"  and  to  be  consulted  be- 
fore or  during  the  course  of  the  negotiations.  There  have  been 
a  few  occasions  upon  which  the  President  has  sought  the  pre- 
vious advice  of  the  Senate,  or  has  informed  that  body  as  to  pend- 
ing negotiations.55  President  Polk  in  1846  referred  to  that  prac- 
tise as  "eminently  wise,"  and  said  that  since  the  Senate  is  a 
branch  of  both  the  treaty-making  and  war-making  powers,  "it 
may  be  eminently  proper  for  the  Executive  to  take  the  opinion 
and  advice  of  that  body  in  advance  upon  any  great  question 
which  may  involve  in  its  decision  the  issue  of  peace  or  war. ' ' 56 

That  practise  has,  however,  been  only  rarely  resorted  to  in 
later  times,57  and  generally  the  "advice"  of  the  Senate,  as  well 
as  its  ' '  consent, ' '  has  been  given  only  after  the  negotiations  have 
been  completed  and  the  final  treaty  laid  before  it  by  the  Presi- 
dent. There  has  been  even  less  disposition  to  interpret  that 
phrase  ("by  and  with  the  advice  and  consent  of  the  Senate") 
as  giving  the  Senate  any  right  to  participate  as  a  body  in  the 
negotiations,  or  to  offer  its  advice  as  to  the  course  and  subject- 
matter  of  the  negotiations.  The  determination  of  those  has  been 
generally  held  to  be  the  function  of  the  President  alone,  and  only 
recently  has  there  been  any  serious  attempt  to  assert  power  on 
the  part  of  the  Senate  to  interfere  or  to  interject  its  "advice" 
during  the  course  of  important  treaty  negotiations,  especially 
those  for  the  conclusion  of  peace. 

Such  an  attempt  was  made,  however,  during  the  recent  treaty 
negotiations  at  Paris,  when  Senator  Knox,  on  June  10,  1919,  in 
an  attempt  to  force  the  separation  of  the  covenant  of  the  League 
of  Nations  from  the  treaty  of  peace  then  being  negotiated,  pro- 
posed a  resolution  declaring,  among  other  things,  that  the  Senate 

55  For  a  list  of  these,  see  Finley  and  Sanderson,  The  American  Execu- 
tive and  Executive  Methods,  28Q-282. 

se  Message  to  Senate,  June  10,  1846.    Richardson,  op.  cit.,  IV,  449. 

57  It  is  significant  that  President  Wilson,  in  announcing  his  famous 
"fourteen  points"  as  the  necessary  conditions  of  peace,  addressed  Con- 
gress as  a  whole,  and  not  the  Senate  alone.  Address  to  Congress,  Jan.  8, 
1918.  McKinley,  Collected  Materials  for  the  Study  of  the  War,  20-22. 


245]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE        245 

of  the  United  States,  "being  a  coequal  part  of  the  treaty  mak- 
ing power  of  this  government  and  therefore  coequally  responsible 
for  any  treaty  which  is  concluded  and  ratified, ' '  was  ' '  deeply  con- 
cerned ' '  over  the  treaty  under  negotiation ;  that  it  would  regard 
a  treaty  confined  to  ' '  the  attainment  of  those  ends  for  which  we 
entered  the  war,"  as  "fully  adequate  for  our  national  needs;" 
that  the  conclusion  of  a  "full  and  complete  peace"  was  the  para- 
mount, if  not  the  sole  duty  of  the  peace  conference;  that  the 
question  of  a  League  of  Nations  should  be  reserved  for  "future 
separate  and  full  consideration"  by  the  people  of  any  nation; 
and  that  the  adoption  by  the  peace  conference  of  ' '  the  foregoing 
reasonable  limitations  and  positions"  would  facilitate  the  early 
acceptance  of  the  treaty  by  the  Senate.58 

This  attempt  to  inject  the  advice  of  the  Senate  into  the  peace 
conference  at  Paris,  and  to  influence  the  course  of  the  negotia- 
tions, was  directly  contrary,  not  only  to  the  traditional  view  that 
treaty  negotiation  is  a  function  belonging  solely  to  the  Presi- 
dent, but  also  to  the  expressed  views  of  Senate  leaders  on  former 
occasions  that  the  Senate  should  hold  itself  distinctly  apart  from 
these  negotiations,  and  only  take  action  when  the  treaty  is  com- 
pleted and  laid  before  it,  or  when  its  advice  is  sought  by  the 
President. 

Thus,  Senator  Spooner,  generally  considered  to  be  one  of  the 
best  constitutional  lawyers  of  his  time,  said  with  regard  to  this 
point :  ' '  The  Senate  has  nothing  whatever  to  do  with  the  nego- 
tiation of  treaties  or  the  conduct  of  our  foreign  intercourse  and 
relations  save  the  exercise  of  the  one  constitutional  function  of 
advice  and  consent  which  the  Constitution  requires  as  a  preced- 
ent condition  to  the  making  of  a  treaty.  .  .  From  the  foun- 
dation of  the  Government  it  has  been  conceded  in  practice  and 
in  thepry  that  the  Constitution  vests  the  power  of  negotiation 
and  the  various  phases  —  and  they  are  multifarious  —  of  the 
conduct  of  our  foreign  relations  exclusively  in  the  President.  And 
he  does  not  exercise  that  constitutional  power,  nor  can  he  be 
made  to  do  it,  under  the  tutelage  or  guardianship  of  the  Senate 
or  of  the  House  or  of  the  Senate  and  House  combined."  5fr 

Likewise,  Senator  Lodge,  who  recently  has  bitterly  criticized 

ss  See  text  of  resolution  in  Cong.  Record,  66  Cong.,  1  Sess.,  935.  The 
resolution  was,  however,  never  acted  upon. 

so  Cong.  Record,  XL,  Pt.  2  (59  Cong.,  1  Sess.),  1418  (Jan.  23,  1906). 


246  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [246 

President  Wilson  for  "ignoring"  the  Senate  in  negotiating  the 
Treaty  of  Versailles,  had  this  to  say  in  1906:  "No  one,  I  think, 
can  doubt  the  absolute  power  of  the  President  to  initiate  and 
carry  on  all  negotiations.  .  .  The  action  of  the  Senate  be- 
comes operative  and  actually  effective  only  when  a  treaty  is  act- 
ually submitted  to  it.  .  .  We  (the  Senate)  have  no  possible 
right  to  break  suddenly  into  the  middle  of  a  negotiation  and  de- 
mand from  the  President  what  instructions  he  has  given  his  rep- 
resentative. That  part  of  the  treaty  making  is  no  concern  of 
ours.  .  .  It  is  a  mere  invasion  of  the  powers  and  rights  of  the 
President  if  we  are  to  plunge  in  at  a  stage  of  the  negotiations 
where  we  have  no  business  whatever  and  demand  from  him  the 
instructions  which  he  has  given  to  his  properly  appointed  rep- 
resentatives. When  the  treaty  made  by  those  representatives 
comes  before  us,  then  is  the  time,  and  not  before,  in  which  we 
can  properly  ask  for  information  in  regard  to  all  that  has  led 
up  to  it."60 

In  the  light  of  these  strong  expressions  of  opinion,  it  would 
seem  that  much  of  the  recent  criticism  of  President  Wilson 
by  Senator  Lodge  and  his  followers  is  unjustified,  especially  in  so 
far  as  it  is  based  on  the  relative  constitutional  position  and 
powers  of  the  Senate  and  the  Executive  in  regard  to  the  making 
of  treaties.  However  overbearing  and  tactless  the  President 
may  have  been  in  his  relations  to  the  Senate,  clearly  he  has  at 
no  time  in  his  negotiation  of  the  Treaty  of  Versailles  exceeded 
the  traditional  view  of  his  constitutional  powers  nor  encroached 
on  those  of  the  Senate. 

The  power  of  the  President  with  regard  to  the  conclusion  of 
peace  does  not  end  with  the  negotiation  and  signature  of  the 
treaty.61  The  Senate  must  give  its  consent  before  the  treaty 
can  become  fully  effective  and  the  state  of  war  be  actually  ter- 
minated, but  the  fact  that  the  Senate  "advises  and  consents" 
to  the  ratification  of  a  treaty  is  not  conclusive,  as  the  President 
alone  can  perform  the  final  act  of  ratification.  The  Senate  may 
amend  a  treaty,  but  the  President  may  decline  to  accept  these 

*o  Cong.  Record,  XL,  Pt.  2  (59  Cong.,  1  Sess.),  1470. 

si  The  mere  signing  of  the  treaty  is  of  some  importance,  since  it  operates 
to  bring  about  a  suspension  of  hostilities,  if  that  has  not  already  been  done 
by  a  separate  armistice  or  protocol.  Hall,  International  Law,  554-555;  cf. 
Haver  v.  Taker,  9  Wall.,  32  (1869). 


247]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE       247 

changes  and  refuse  to  ratify  the  amended  treaty.  He  may  with- 
draw a  treaty  from  the  Senate  at  any  time  during  its  consider- 
ation, and  he  may,  if  he  chooses,  even  decline  to  ratify  a  treaty 
that  has  been  approved  by  the  Senate  in  its  .original  form.  In 
other  words,  while  the  " advice  and  consent"  of  the  Senate  is  a 
condition  precedent  to  ratification,  it  is  not  mandatory  —  the 
President  has  the  final  word.62 

It  is  therefore  within  the  power  of  the  President  to  determine 
the  actual  date  for  the  termination  of  a  war  and  the  conclusion 
of  peace.  That  is  done  by  means  of  a  proclamation,  announcing 
the  effectiveness  of  the  treaty  or  the  exchange  of  ratifications, 
in  the  case  of  a  foreign  war,  or  merely  announcing  the  termina- 
tion of  armed  resistance,  in  the  case  of  a  civil  war.  The  actual 
exchange  of  ratifications,  or  the  actual  suppression  of  rebellion, 
apparently  are  not  enough ;  there  must  be  an  official  declaration 
of  the  event  by  the  President.  ' '  The  war  commences  when  gov- 
ernment officially  says  it  has  commenced,  and  it  ends  when 
government  officially  says  it  has  ceased  to  exist ; " 63  and 
"government"  in  the  latter  case  means  the  President.64 

Thus,  the  War  of  1812  was  officially  terminated  on  February 
18,  1815,  the  war  with  Mexico  on  July  4,  1848,  and  the  war  with 

62  Crandall,  Treaties :  Their  Making  and  Enforcement,  97.  ' '  The  Presi- 
dent is  so  supreme  under  the  Constitution  in  the  matter  of  treaties,  exclud- 
ing only  the  Senate's  ratification,  that  he  may  negotiate  a  treaty,  he  may 
send  it  to  the  Senate,  it  may  receive  by  way  of  'advice  and  consent'  the 
unanimous  judgment  of  the  Senate  that  it  is  in  the  highest  degree  for  the 
public  interest,  and  yet  the  President  is  as  free  when  it  is  sent  back  to  the 
White  House  with  resolution  of  ratification  attached,  to  put  it  in  his  desk 
never  again  to  see  the  light  of  day  as  he  was  free  to  determine  in  the  first 
instance  whether  he  would  or  would  not  negotiate  it.     That  power  is  not 
expressly  given  to  the  President  by  the  Constitution,  but  it  inheres  in  the 
executive  power  conferred  upon  him  to  conduct  our  foreign  relations,  and 
it  is  a  power  which  inheres  in  him  as  the  sole  organ  under  the  Constitution 
through  whom  our  foreign  relations  and  diplomatic  intercourse  are  con- 
ducted." Senator  John  C.  Spooner,  in  U.  8.  Senate,  Jan.  23,  1906.  Cong. 
Record,  XL,  Pt.  2  (59  Cong.,  1  Sess.  ),  1419. 

63  Glenn,  The  Army  and  the  Law,  64. 

e*  "  It  is  necessary  to  refer  to  some  public  act  of  the  political  depart- 
ments of  the  government  to  fix  the  dates;  and  for  obvious  reasons,  those  of 
the  executive  department.  .  .  must  be  taken. ' '  The  Protector,  12  Wall., 
700,  702  (1871).  Of  course  the  Court  was  here  referring  particularly  to  a 
civil  war. 


248  WAE  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [248 

Spain  on  April  11,  1899,  because  of  the  President's  proclamation 
of  that  date  in  each  particular  case.  Only  in  the  case  of  the  war 
with  Spain  did  that  date  correspond  with  the  date  of  the  actual 
exchange  of  treaty  ratifications.65  So  also  the  Civil  War  is  de- 
clared by  the  courts  to  have  ended  on  April  2,  1866,  with  respect 
to  all  the  insurrectionary  states  except  Texas,  and  on  August 
20,  1866,  with  respect  to  Texas,  because  of  the  proclamations  of 
the  President  declaring  armed  resistance  at  an  end  as  of  those 
dates,  altho  the  last  rebel  army  surrendered  in  May,  1865.66 

Recent  war  legislation  also  shows  clearly  that  Congress  con- 
templated that  the  date  for  the  termination  of  the  state  of  war 
with  Germany  and  Austria-Hungary  should  be  determined  by 
proclamation  of  the  President.  Thus,  there  were  express  pro- 
visions declaring  that  "the  fact  and  date  of  such  termination 
shall  be  ascertained  and  proclaimed  by  the  President,"  or  that 
the  end  of  the  war  "shall  be  deemed  to  mean  the  date  of  proc- 
lamation of  exchange  of  ratifications  of  the  treaty  of  peace. ' '  In 
other  cases,  it  was  provided  that  the  acts  should  terminate  a  cer- 
tain time  ' '  after  a  final  treaty  of  peace  is  proclaimed, "  or  "  fol- 
lowing the  date  of  the  proclamation  by  the  President  of  the  ex- 
change of  ratifications  of  the  treaty  of  peace,"  or  similar  lan- 
guage.67 

The  powers  of  the  President  with  regard  to  the  conclusion 
of  peace  are  therefore  very  extensive  and  quite  definite.  He  may, 
on  his  own  authority,  undertake  preliminary  measures  and  en- 
ter into  preliminary  agreements  for  the  termination  of  hostil- 
ities ;  through  these  preliminary  measures,  he  may  to  a  consider- 
able extent  lay  down  the  conditions  of  permanent  peace  and 
commit  the  nation  to  them.  With  regard  to  the  definitive  treaty 
of  peace,  the  President  has  entire  control  of  the  personnel  of  the 
peace  commission,  and  entire  control  of  the  peace  negotiations; 

65  For  the  proclamations,  see  Richardson,  op.  tit.,  I,  560;  IV,  627;  For, 
Eel.  1898,  831.  In  the  first  case,  the  treaty  was  signed  Dec.  24,  1814,  and 
ratifications  exchanged  Feb.  17,  1815;  in  the  second,  the  first  treaty  was 
concluded  Feb.  2,  1848,  and  ratifications  of  the  amended  treaty  exchanged 
May  30;  in  the  last  case,  the  treaty  was  signed  Dec.  10,  1898,  and  approv- 
ed by  the  Senate  Feb.  6,  1899. 

ee  The  Protector,  12  Wall.,  700,  702  (1871) ;  Lamar  v.  Browne,  92  U.  8., 
187,  193  (1875) ;  Birkhimer,  Military  Government  and  Martial  Law,  367- 
368;  Richardson,  op.  tit.,  VI,  429-432,  434-438. 

67  Supra,  231. 


249]       POWERS  WITH  REGARD  TO  A  TREATY  OF  PEACE        249 

he  is  required  to  obtain  the  "advice  and  consent"  of  the  Senate 
before  putting  a  treaty  of  peace  into  final  effect,  but  when  that 
is  obtained,  he  is  again  absolute  as  to  the  final  acceptance  of  the 
treaty,  and  as  to  the  time  for  its  becoming  effective. 


CHAPTER  XV 

POWERS  WITH  REGARD  TO  RECONSTRUCTION 

With  the  termination  of  the  emergencies  of  war,  it  might  be 
expected  that  the  exercise  of  the  "war  powers"  should  imme- 
diately cease.  Ex-Justice  Hughes  thus  expressed  the  view,  shortly 
after  the  signing  of  the  armistice  at  the  close  of  the  recent  war, 
that  in  the  harnessing  of  our  strength  for  war  we  were  acting 
' '  under  the  Constitution  and  not  in  violation  of  it, ' '  but  that  to 
use  the  war  powers  to  control  peace  conditions  was  a  proceed- 
ing ' '  essentially  vicious  and  constituting  the  most  serious  offense 
against  our  institutions. ' ' x  Elihu  Root,  in  his  argument  before 
the  Supreme  Court  in  the  recent  prohibition  cases,  likewise  con- 
tended that  the  right  to  exercise  the  war  powers  no  longer  existed 
when  the  war  emergency  had  passed.  "The  question,"  he  said, 
"is  much  confused  by  a  certain  vague  and  colloquial  use  of  the 
term  '  war  powers. '  War  confers  no  powers  upon  Congress.  The 
powers  are  all  in  the  Constitution  of  the  United  States.  The  con- 
dition of  war  does  create  exigencies  which  make  appropriate  the 
exercise  of  powers  not  otherwise  existing.  .  .  On  the  other 
hand,  when  the  war  has  progressed  to  an  extent  that  the  enemy 
has  been  forced  into  submission  and  there  is  no  longer  an  army 
or  navy  to  be  raised  and  maintained  the  power  ends  because  the 
exigency  no  longer  exists. ' ' 2 

It  is  generally  recognized,  however,  that  the  return  to  normal 
peace  conditions  can  be  made  only  gradually,  that  there  must 
be  a  period  of  readjustment  and  reconstruction  during  which  cer- 
tain of  the  war  powers  must  of  necessity  continue  to  be  exer- 
cised. Thus  Mr.  Hughes  admitted,  in  the  speech  quoted  above, 
that  "whenever,  during  the  war,  extraordinary  powers  were  fit- 
tingly exercised  and  governmental  control  was  assumed  for  war 


1  N.  Y.  Times,  Nov.  29,  1918. 

2  Ibid.,  Nov.  19,  1919. 


250 


251]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  251 

purposes,  the  readjustment  to  conditions  of  peace  must  of  course 
be  effected  gradually  and  with  the  circumspection  essential  to 
the  protection  of  all  the  public  and  private  interests  involved." 
Professor  Willoughby  also  remarks  that ' '  the  power  to  wage  war 
carries  with  it  authority  not  only  to  bring  it  to  a  full  conclusion, 
but,  after  cessation  of  active  military  operations,  to  take  meas- 
ures to  provide  against  its  renewal ; " 3  and  the  Supreme  Court 
long  ago  held  that  "the  power  (to  carry  on  war)  is  not  limited 
to  victories  in  the  field.  .  .  It  carries  with  it  inherently  the 
power  to  guard  against  the  immediate  renewal  of  the  conflict, 
and  to  remedy  the  evils  which  have  arisen  from  its  rise  and 
progress."4 

Altho  this  opinion  of  the  court  referred  particularly  to  the 
conditions  resulting  from  the  Civil  War,  there  would  here  seem 
to  be  some  warrant  for  the  belief  that  the  President,  who  as  Com- 
mander-in-Chief  has  the  power  of  waging  war,  is  also  entrusted 
with  such  powers  as  may  be  necessary  to  effect  a  complete  return 
to  the  normal  conditions  of  peace. 

Some  of  these  powers,  such  as  the  resumption  of  friendly  re- 
lations with  the  opposing  belligerent,  may  result  from  an  ordin- 
ary constitutional  function,  whose  exercise  in  this  case  is  made 
necessary  in  order  to  completely  restore  the  status  of  peace.5  In 
other  cases,  however,  the  termination  of  war  and  the  consequent 
problems  of  reconstruction  may  bring  about  new  situations  which 
can  only  be  met  by  the  assumption  of  unusual  authority  and  the 
exercise  of  extraordinary  powers.  Thus,  the  measures  under- 
taken by  Presidents  Lincoln  and  Johnson  in  reorganizing  and 
reconstructing  the  governments  of  the  insurrectionary  states  of 
the  South  by  executive  orders  and  through  military  com- 
manders,6 were  upheld  by  the  Supreme  Court  as  a  legitimate 
exercise  by  the  President  of  his  powers  as  Commander-in-Chief, 
subject  to  final  determination  by  Congress.7 

3  Constitutional  Law,  II,  1212. 

4  Stewart  v.  Eahn,  11  Wall.,  493,  507  (1870). 

s  That  is,  the  appointment  and  reception  of  accredited  diplomatic  agents. 

6  See  Dunning,  Reconstruction:  Political  and  Economic,  35-39. 

7  Texas  v.  White,  7  Wall.,  700,  730-731  (1868).     However,  the  claim  as- 
serted by  both  Lincoln  and  Johnson,  that  the  President  had  a  right  to  de- 
termine the  conditions  upon  which  these  reconstructed  states  might  be  fully 
restored  to  their  former  place  in  the  Union,  was  successfully  disputed  by 
Congress.     Hosmer,  Outcome  of  the  Civil  War,  135-144,  225-227  •  Dunning, 
op.  cit.,  esp.  chs.  4,  6. 


252  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [252 

The  successful  conclusion  of  a  war  frequently  results  in  the  ac- 
quisition of  additional  territory,  and  the  determination  of  the 
status,  rights,  and  government  of  such  acquired  territory  is  one 
of  the  problems  of  the  reconstruction  period.  It  is  a  well-rec- 
ognized constitutional  principle  in  the  United  States  that,  when 
territory  is  annexed  by  the  United  States  or  comes  in  any  man- 
ner under  its  jurisdiction,  Congress  has  an  absolute  right,  from 
the  moment  of  such  acquisition,  to  determine  the  political  rights 
and  governmental  organization  of  that  territory.8  In  the  case  of 
territory  acquired  by  purchase  or  other  peaceful  means,  Congress 
has  generally  seen  fit  to  exercise  that  right  by  conferring  tem- 
porary but  complete  governmental  power  on  the  President,  until 
it  can  itself  provide  for  a  definite  system  of  government. 

Thus,  after  the  cession  of  Louisiana,  an  act  was  passed  provid- 
ing that,  until  Congress  should  otherwise  provide,  ' '  all  the  mili- 
tary, civil,  and  judicial  powers  exercised  by  the  officers  of  the 
existing  government  of  the  same,  shall  te  vested  in  such  person 
or  persons  and  shall  be  exercised  in  such  manner  as  the  Presi- 
dent of  the  United  States  shall  direct. ' ' 9  Under  this  provision, 
the  President  exercised  complete  governmental  authority  over 
Louisiana  until  October  1,  1804,  when  the  territorial  government 
created  by  Congress  went  into  effect.10  In  almost  identical  lan- 
guage, Congress  likewise  vested  the  temporary  government  of 
Florida  in  the  President,11  all  the  powers  of  which  were  exer- 
cised by  him  through  General  Jackson  as  governor  and  through 
other  subordinates  until  Florida  was  made  a  territory  in  1822.12 
Alaska,  acquired  in  1867,  was  governed  under  the  sole  authority 
of  the  President  until  1900,  when  Congress  adopted  a  civil  code 
and  provided  a  form  of  civil  government  for  that  region ; 13 

sWilloughby,  op.  tit.,  I,  403. 

»  Act  of  Oct.  31,  1803.  Annals  of  Cong.,  8  Cong.,  1  Sess.,  App.,  1245. 
Objections  were  made  to  this  grant  of  power  on  the  ground  that  the  com- 
bination of  all  governmental  powers  in  one  man  was  unconstitutional,  and 
that  it  made  the  President  a  despot.  Thomas,  Military  Government  in 
Newly  Acquired  Territory  of  the  United  States,  30-31;  McMaster,  History 
of  the  People  of  the  United  States,  III,  9-10. 

10  Act  of  Mar.  26,  1804.  Annals  of  Cong.,  8  Cong.,  1  Sess.,  App.,  1293. 

11  Acts  of  Mar.  3,  1819  and  Mar.  3,  1821.     Ibid.,  15  Cong.,  2  Sess.,  11, 
App.,  2534;  16  Cong.,  2  Sess.,  App.,  1809. 

12  Act  of  Mar.  30,  1822.  Ibid.,  17  Cong.,  1  Sess.,  II,  App.,  2578;   cf. 
Thomas,  op.  tit.,  65-70,  95,  98. 

is  Act  of  June  6,  1900.  31  Stat.  at  L.,  321.     The  President  exercised  his 


253]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  253 

while  Hawaii  was  governed  by  the  President  for  more  than  two 
years  under  the  authority  of  the  joint  resolution  of  annexation.14 
The  government  of  the  Panama  Canal  Zone,  established  and  car- 
ried on  by  the  President  at  first  under  the  authority  of  Con- 
gress,15 was,  upon  the  failure  of  Congress  to  continue  that  au- 
thority, nevertheless  continued  by  authority  of  several  executive 
orders,16  until  congressional  sanction  was  again  given  in  1912. 1T 
' '  Beginning  with  a  government  which  might  be  termed  political, 
it  ended  as  a  government  by  executive  order,  controlled  by  one 
man  answerable  only  to  the  President  of  the  United  States, 
through  the  Secretary  of  War. ' ' 18 

While  the  status  and  government  of  acquired  territory  are 
clearly  subject  to  the  jurisdiction  and  control  of  Congress,  it 
would  seem  that  another  constitutional  principle  may  be  derived 
from  these  examples,  namely,  that  in  the  absence  of  congres- 
sional legislation,  the  President  may  exercise  temporary  govern- 
mental power  on  his  own  authority.  In  fact,  the  presumption 
seems  to  have  existed  from  the  time  of  the  acquisition  of  Lousi- 
ana  that  the  President  could  exercise  such  authority  by  virtue 
of  his  powers  as  Commander-in-Chief.19 

authority  in  Alaska  principally  through  the  army  commanders  and  through 
the  Secretary  of  the  Treasury  (Alaska  having,  by  executive  order,  been 
made  a  revenue  district).  Thomas,  op.  tit.,  279-280.  Alaska  was  definitely 
organized  as  a  territory  by  Act  of  Aug.  24,  1912.  37  Stat.  at  L.,  512. 

i*  Joint  Eesolution  of  July  7,  1898.  30  Stat.  at  L.,  750.  A  territorial 
government  was  established  Dec.  3,  1900,  by  Act  of  Apr.  30,  1900.  31  ibid., 
141. 

is  Acts  of  June  28,  1902  (Spooner  Act)  and  Apr.  28,  1904.  32  Stat. 
at  L.,  481;  33  ibid.,  429.  The  former  authorized  the  President  to  estab- 
lish judicial  tribunals  in  territory  acquired  for  the  canal,  in  order  to  en- 
force the  rules  and  regulations  which  he  might  deem  necessary  and  proper 
for  the  preservation  of  order  and  public  health;  which  authority  was  con- 
sidered sufficient  to  permit  the  establishment  of  ' '  such  form  of  govern- 
ment as  the  President  might  determine. ' '  The  latter  act  provided  that  the 
President  should  be  vested  with  all  the  powers  of  government  until  the  ex- 
piration of  the  58th  Congress,  unless  other  provisions  for  a  government 
were  sooner  made.  See  Goethals,  Government  of  the  Canal  Zone,  11-20. 

is  Executive  orders  of  Apr.  1,  1905;  Nov.  17,  1906;  April,  1907;  Jan. 
8,  1908.  Goethals,  op.  tit.,  43-50.  The  58th  Congress  adjourned  without 
making  any  further  provision  for  the  government  of  the  Canal  Zone. 

IT  Panama  Canal  Act  of  Aug.  24,  1912.  37  Stat.  at  L.,  560. 

i8  Goethals,  op.  tit.,  51. 

is  Willoughby,  op.  tit.,  I,  390;  Thomas,  op.  tit.,  31-32. 


254  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [254 

In  the  case  of  territory  acquired  after  conquest  and  occupa- 
tion in  war,  the  power  of  Congress  likewise  constitutionally 
attaches  from  the  moment  of  acquisition.  However,  the  problem 
of  the  temporary  government  of  such  territory,  in  the  absence  of 
provision  by  Congress,  is  somewhat  different  from  that  in  the 
case  of  territory  acquired  peacefully.  It  involves  the  question 
of  the  continuance  of  the  military  government  already  existing 
under  the  authority  and  direction  of  the  President,  or  of  the 
power  to  set  up  some  other  form  of  government  under  other 
authority. 

President  Polk,  after  the  ratification  of  the  treaty  of  peace 
with  Mexico  in  1848,  at  first  held  that  he  had  no  power  to  con- 
tinue the  governments  established  by  him  over  New  Mexico  and 
California  during  the  war,  but  that  upon  the  definitive  conclu- 
sion of  peace,  these  governments  "necessarily  ceased  to  exist." 
He  also  held  that  he  had  no  power  to  establish  other  temporary 
governments  without  the  sanction  of  Congress.  ' '  The  war  with 
Mexico  having  terminated,"  he  said,  "the  power  of  the  Execu- 
tive to  establish  or  continue  temporary  civil  governments  over 
these  territories,  which  existed  under  the  laws  of  nations  whilst 
they  were  regarded  as  conquered  provinces  in  our  military  oc- 
cupation, has  ceased.  By  their  cession  to  the  United  States 
Mexico  has  no  longer  any  power  over  them,  and  until  Congress 
shall  act  the  inhabitants  will  be  without  any  organized  govern- 
ment. " 20  In  order  to  prevent  anarchy  and  confusion,  the 
President  therefore  recommended  the  immediate  establishment 
of  territorial  governments  in  New  Mexico  and  California,  he 
himself  proposing  in  the  meantime  merely  to  maintain  a  small 
military  force  in  those  regions  in  order  to  "hold  the  country 
and  protect  the  inhabitants  against  Mexican,  Indian,  or  other 
enemies  who  might  disturb  them. ' ' 21 

The  failure  of  Congress  to  provide  for  these  newly  acquired 
•  territories  before  adjournment,  seemed  to  make  necessary  the 
establishment  of  a  government  by  some  other  authority.  Sen- 
ator Benton,  in  a  letter  of  August  27,  1848,  addressed  to  the 
people  of  California,  advised  them  to  meet  in  convention,  form 
a  "cheap  and  simple"  government,  and  take  care  of  them- 

20  Messages  of  July  6  and  July  24,  1848.    Bichardson,  Messages  and 
Papers  of  the  Presidents,  IV,  589,  596. 

21  Richardson,  op.  cit.,  IV,  589;  Diary  of  James  K.  Polk,  IV,  136. 


255]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  255 

selves  until  Congress  should  act.  President  Polk,  considering 
this  move  "offensive"  and  "arrogant,"  and  principally  intend- 
ed to  make  Colonel  John  C.  Fremont  (Benton's  son-in-law)  gov- 
ernor of  an  independent  government  of  California,  felt  that  some 
greater  exercise  of  Executive  power  was  necessary,  if  confusion, 
anarchy,  and  possible  revolution  were  to  be  avoided.  He  there- 
fore summoned  his  Cabinet  to  consider  the  "question  of  diffi- 
culty," namely,  "what  Government  existed  over  the  country 
until  Congress  should  act,  and  what  power  to  govern  it  the  Exe- 
cutive possessed,"  and  an  agreement  was  reached  that  the  tem- 
porary military  governments  established  during  the  war  should 
be  regarded  as  governments  de  facto,  still  existing  by  the  pre- 
sumed consent  of  the  people,  and  to  which  the  people  should  be 
advised  to  submit.22 

Accordingly,  Secretary  of  State  Buchanan,  in  a  letter  of  Oc- 
tober 7,  1848,  drew  up  instructions  to  the  people  of  California, 
in  which  he  expressed  the  position  of  the  Administration  as  fol- 
lows :  ' '  The  termination  of  the  war  left  an  existing  Government, 
a  Government  de  facto,  in  full  operation ;  and  this  will  continue 
with  the  presumed  consent  of  the  people,  until  Congress  shall 
provide  for  them  a  territorial  Government.  The  great  law  of 
necessity  justifies  this  conclusion.  The  consent  of  the  people  is 
irresistibly  inferred  from  the  fact  that  no  civilized  community 
could  possibly  desire  to  abrogate  an  existing  Government,  when 
the  alternative  presented  would  be  to  place  themselves  in  a  state 
of  anarchy  beyond  the  protection  of  all  laws  ,  and  reduce  them 
to  the  unhappy  necessity  of  submitting  to  the  dominion  of  the 
strongest. ' ' 23 

Similar  instructions  were  drawn  up  for  the  people  of  New 
Mexico  by  Secretary  of  "War  Marcy,24  and  President  Polk  him- 
self announced  the  new  policy  to  Congress  in  December,  stating 
that  "the  very  limited  power  possessed  by  the  Executive  has 
been  exercised  to  preserve  and  protect  them  from  the  inevi- 
table consequences  of  a  state  of  anarchy.  The  only  government 

22  See  Thomas,  op.  tit.,  130;  Diary  of  James  K.  Polk,  IV,  136-137,  140- 
143. 

23  Buchanan  to  Mr.  Voorhies,  agent  of  the  Post-Office  Department  in 
California.     Moore,   Works  of  James  Buchanan,  VIII,  211-216,  esp.   213; 
cf.  Diary  of  James  K.  Polk,  IV,  143,  146-149. 

24  Thomas,  op.  cit.,  132-133. 


256  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [256 

which  remained  was  that  established  by  the  military  authority 
during  the  war.  Regarding  this  to  be  a  de  facto  government, 
and  that  by  the  presumed  consent  of  the  inhabitants  it  might  be 
continued  temporarily,  they  were  advised  to  submit  to  it  for  the 
short  intervening  period  before  Congress  would  again  assemble 
and  could  legislate  on  the  subject. ' ' 25 

The  same  doctrine  concerning  the  governmental  power  of  the 
President  was  asserted  also  by  the  succeeding  administration,26 
but  there  seemed  to  be  a  distinct  effort  on  the  part  of  the  Presi- 
dent in  each  case  to  emphasize  the  civil  rather  than  the  military 
authority  of  the  governments  so  recognized  as  existing  by  neces- 
sity and  presumed  consent.  The  authorities  apparently  believed 
that  "at  the  conclusion  of  the  war  the  military  government  be- 
came merged  into  a  sort  of  de  facto  civil  government."  Thus, 
President  Polk  selected  General  P.  F.  Smith  as  commander  in 
California,  because  he  was  ' '  a  man  of  education  and  intelligence 
and  possessed  of  much  knowledge  of  civil  government  as  well  as 
of  military  command,  and  it  was  desirable  to  have  such  an  offi- 
cer in  chief  command  in  California  in  the  present  anomalous 
state  of  that  country. ' ' 2T 

During  the  administration  of  President  Taylor,  General  Riley, 
then  commanding  officer  in  California,  issued  a  proclamation 
(June  3,  1849),  in  which  he  sought  to  correct  the  impression 
that  the  de  facto  government  was  still  military  in  character. 
"The  military  government  ended  with  the  war,"  he  said,  "and 
what  remains  is  the  civil  government,  recognized  in  the  existing 
laws  of  California.  Although  the  command  of  the  troops  in  this 
department  and  the  administration  of  civil  affairs  in  California 
are,  by  the  existing  laws  of  the  country  and  the  instructions  of 
the  President  of  the  United  States,  temporarily  lodged  in  the 
hands  of  the  same  individual,  they  are  separate  and  distinct."28 
President  Fillmore  likewise  held  that  the  civil  and  military  de- 
partments in  these  temporary  governments  should  be  kept  sepa- 
rate and  distinct,  and  ordered  the  military  governor  of  New 

25  Message  of  Dec.  5,  1848.  Richardson,  op.  tit.,  IV,  638. 

26  Thomas,  op.  tit.,  211. 

2T  Diary  of  James  K.  Polk,  IV,  149.  Apparently  Gen.  Smith  never  acted 
as  civil  governor,  however,  but  only  as  the  senior  commanding  officer  for 
a  short  time.  Thomas,  op.  tit.,  212. 

28  Thomas,  op.  tit.,  211-212. 


257]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  257 

Mexico  not  to  interfere  with  civil  and  political  affairs.  "Tem- 
porary departure  from  this  principle  may  be  required  occasion- 
ally, but  it  should  close  with  the  passing  of  the  necessity.  No 
necessity  now  seems  to  exist  in  New  Mexico. ' ' 29 

While  the  President  himself  in  these  early  cases  based  his  claim 
to  temporary  governmental  power  upon  the  doctrine  of  neces- 
sity and  the  presumed  consent  of  the  people  rather  than  upon 
his  "war  powers,"  the  Supreme  Court  seemed  to  take  the  view 
that  the  war  powers  might  continue  to  be  the  basis  for  the  exer- 
cise of  such  governmental  power  even  after  the  conclusion  of 
peace.  The  Court  held  that  the  restoration  of  peace  did  not,  as 
a  matter  of  course,  terminate  a  military  government  established 
over  conquered  territory,  but  that  an  inference  that  it  was  to 
continue  subsequent  to  the  conclusion  of  peace  arose  from  the 
failure  of  the  President  or  Congress  to  dissolve  it.  It  therefore 
sustained  the  right  of  the  President,  in  the  exercise  of  his  pow- 
ers as  Commander-in-Chief,  not  only  to  establish  governments 
over  conquered  territory,  but  also  to  continue  these  govern- 
ments in  existence  after  the  termination  of  the  war,  until  Con- 
gress should  act.30 

Whether  acting  as  civil  or  military  governor,  however,  the 
military  commander,  as  the  President's  most  immediate  repre- 
sentative, apparently  may  exercise  as  absolute  powers  in  these 
de  facto  governments  as  in  the  military  governments  during  the 
war-time  occupation.31  In  New  Mexico,  Governor  Vigil  con- 
tinued in  office  as  civil  governor  for  some  time  after  the  ratifi- 
cation of  the  treaty  of  peace,  but  Colonel  John  Price,  the  mili- 
tary commander,  exercised  the  real  authority.  He  approved, 
by  special  order,  the  acts  passed  by  the  legislature  elected  under 
Kearney's  organic  law,  and  even  abolished  the  offices  named  in 
the  statutes  (secretary,  district  attorney,  and  marshal).32  Col- 
onel John  Munroe,  when  he  became  military  commander  in  New 
Mexico,  assumed  both  the  title  and  functions  of  "civil  and  mili- 
tary governor,"  and  continued  to  act  as  such  until  New  Mexico 
became  a  territory  in  1851.33  Likewise  in  California,  the  mili- 

29  Thomas,  op.  cit.,  146. 

so  Cross  v.  Harrison,  16  How.,  164,  190,  193,  195  (1853);  Leitensdorfer 
v.  Webb,  20  How.,  176,  178  (1857). 
31  Cf.  supra,  ch.  IX. 
sz  Thomas,  op.  cit.,  129 ;  cf.  supra,  161. 
ss  Thomas,  op.  cit.,  147. 


258  WAR  POWEES  OF  THE  EXECUTIVE  IN  UNITED  STATES          [258 

tary  commander  issued  orders  and  decrees  having  the  force  of 
law ;  appointed  special  tribunals ;  defined  the  jurisdiction  of  the 
courts ;  organized  a  supreme  court ;  appointed  and  removed  offi- 
cials; and,  finally,  ordered  an  election  for  delegates  to  a  consti- 
tutional convention,  submitted  the  constitution  to  the  people, 
and  declared  it  ordained  and  established  nearly  a  year  before  the 
state  was  actually  admitted  by  Congress.34 

In  the  case  of  the  territories  acquired  as  a  result  of  the  Span- 
ish-American War,  Congress  likewise  failed  to  make  immediate 
provision  for  their  government,  and  the  President  therefore  con- 
tinued to  exercise  all  the  powers  of  government  over  those  terri- 
tories for  some  considerable  time  after  the  definitive  conclusion 
of  peace  with  Spain.  Thus,  in  Porto  Eico  the  military  govern- 
ment instituted  on  October  18,  1898,  continued  to  operate  under 
the  sole  authority  of  the  President  until  May  1,  1900,  when  it 
was  superseded  by  the  civil  government  established  under  the 
provisions  of  the  Foraker  Act.35  The  military  governor,  during 
that  period,  exercised  absolute  power  over  the  affairs  of  the 
island,  maintaining  law  and  order,  reorganizing  the  judiciary, 
reforming  the  criminal  procedure,  providing  a  new  system  of 
taxation,  and  gradually  introducing  free  and  self-governing  in- 
stitutions.38 In  the  words  of  a  native  writer,  the  military  gov- 
ernor, as  the  representative  of  the  President,  "had  absolute  and 
complete  control,  not  only  over  the  army,  but  also  over  the  civil 
population  of  the  island,  and  whatever  orders  he  saw  fit  to  issue 
had  the  force  of  law. ' ' 37 

s*  Thomas,  op.  cit.,  229-234,  264-265,  269,  273-275.  Gen.  Riley  yielded  his 
authority  on  Dec.  20,  1849,  to  Peter  Burnett,  the  governor  elected  under  this 
constitution,  altho  California  was  not  admitted  till  Sept.  9,  1850. 

36  See  Bowe,  The  United  States  and  Porto  Eico,  118-128,  190-191,  206- 
208. 

37  Pedro  Capo-Rodriguez,  in  Am.  Jour.  Int.  Law,  IX,  904.     In  connec- 
tion with  the  transfer  of  the  government  from  the  military  to  the  civil 
authorities,  there  occurred  an  interesting  illustration  of  the  power  of  the 
military  governor  to  meet  an  extraordinary  situation.     The  civil  officials 
provided  for  in  the  Foraker  Act  not  having  all  been  able  to  qualify  by  the 
time  set  for  the  transfer,  and  the  military   officers  being  forbidden  by 
statute  to  hold  civil  office,  the  military  governor  on  April  30  simply  re- 
organized the  military  government  so  as  to  conform  to  the  plan  of  the 
Foraker  Act  and  appointed  civilians  to  fill  the  offices  until  those  selected 
by  the  President  could  qualify.     See  Rowe,  op.  tit.,  134-136;   Thomas,  op. 
cit.,  310. 


259]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  259 

Cuba,  tho  not  ceded  to  the  United  States  by  the  treaty  of 
peace,  was  likewise  kept  under  military  occupation  from  the 
time  of  its  seizure  in  1898  until  the  inauguration  of  the  republic 
on  May  20,  1902 ;  and  during  that  time  the  President,  through 
the  Secretary  of  War  and  the  military  governor,  administered 
the  affairs  of  that  island  at  his  discretion.  The  suffrage  quali- 
fications were  determined  upon  by  "general  agreement"  of  the 
military  governor  with  "leading  Cubans,"  while  election  laws 
and  other  statutes  were  promulgated,  and  the  self-governing 
powers  of  the  municipal  governments  were  enlarged  or  the  muni- 
cipalities suppressed  altogether  by  military  order.38  Finally, 
when  the  Executive  deemed  the  time  ripe  for  complete  self-gov- 
ernment, the  military  governor  summoned  a  constitutional  con- 
vention, determined  the  number  and  distribution  of  delegates, 
carefully  instructed  them  as  to  their  duties,39  and  saw  to  it  that 
the  provisions  suggested  by  the  Secretary  of  War  as  the  basis 
for  the  future  relations  between  Cuba  and  the  United  States,40 
were  adopted  by  the  convention.41  He  also  passed  upon  the 

38  Of  the  138  municipalities  in  Cuba,  56  were  suppressed  ' '  on  the  ground 
that  they  had  neither  the  resources  nor  population  sufficient  to  maintain 
a  well  organized  municipality."  Gen.  Leonard  Wood,  "The  Military  Gov- 
ernment of  Cubsi,"Ann.  Am.  Acad.,  XXI,  160-161. 

as  See  order  of  July  25,  1900,  calling  the  election  for  delegates ;  also 
the  opening  statement  of  the  military  governor  to  the  convention,  Nov. 
5,  1900,  in  which  he  said:  "Under  the  order  pursuant  to  which  you  have 
been  elected  and  convened  you  have  no  duty  and  no  authority  to  take  part 
in  the  present  government  of  the  island.  Your  powers  are  strictly  limited 
by  the  terms  of  that  order."  Boot,  Military  and  Colonial  Policy  of  the 
United  States,  195,  196. 

40  Instructions  of  Secretary  of  War  Boot  to  Maj.  Gen.  Wood,  Feb.  9, 
1901.  Root,  op.  tit.,  208-212.     With  regard  to  these  provisions,  Secretary 
Boot  instructed  Maj.  Gen.  Wood  as  follows:     "These  provisions  may  not, 
it  is  true,  prove  to  be  in  accord  with  the  conclusions  which  Congress  may 
ultimately  reach  when  that  body  comes  to  consider  the  subject,  but  as, 
until  Congress  has  acted,  the  Executive  must  necessarily  within  its  own 
sphere  be  controlled  by  its  own  jlidgment,  you  should  be  guided  by  the 
views  above  expressed. ' '  Ibid.,  212.     These  provisions  were,  however,  em- 
bodied in  the  famous  Platt  Amendment  to  the  Act  of  Mar.  2,  1901.  31 
Stat.  at  L.,  895,  897. 

41  "  On  receipt  of  the  instructions  by  cable  I  immediately  assembled  the 
Committee  on  Relations  to  Exist  between  Cuba  and  the  United  States  and 
made  known  to  them  the  five  articles  or  provisions  which,  in  the  opinion  of 
the  Executive  branch  of  the  Government,  represent  the  wishes  of  the  Uni- 


260  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [260 

constitution  adopted  by  this  convention,  and  not  before  it  had 
been  treated  by  him  ' '  as  an  acceptable  basis  for  the  formation  of 
the  new  government"  was  the  transfer  to  that  new  government 
permitted  to  take  place.42  In  effect,  the  President  not  only  ex- 
ercised all  the  powers  of  government  over  the  island  of  Cuba 
while  it  was  under  military  occupation,  but  himself  determined 
when  and  under  what  conditions  such  military  occupation  should 
cease  and  the  troops  and  authority  of  the  United  States  be  with- 
drawn, the  assumption  of  this  authority  being  upheld  by  the  Su- 
preme Court  as  a  legitimate  function  of  the  "political  branch" 
of  the  Government,  in  this  case  the  Executive.43 

In  the  Philippines,  the  President  likewise  carried  on  the  gov- 
ernment for  about  two  years  after  the  definitive  conclusion  of 
peace,  ' ' untrammeled  or  unaided  by  any  word  from  Congress." 
Altho  Secretary  of  War  Root  announced  that  all  formal  and 
open  resistance  to  the  authority  of  the  United  States  had  termi- 
nated in  the  spring  of  1900,44  President  McKinley,  by  virtue 
of  his  authority  as  Commander-in-Chief,45  continued  the  mili- 
tary governor  as  the  executive  authority  in  the  islands,  but 
vested  the  legislative  power  in  a  civilian  Commission.46  He  out- 
lined the  duties  of  this  Commission  and  the  general  policy  to- 
wards the  Philippines  in  elaborate  instructions,  which  came  to 
be  considered  the  ' '  organic  act  of  the  Philippines, ' '  "  and  under 

ted  States  in  all  that  pertains  to  the  proposed  relations  between  the  Gov- 
ernment of  the  United  States  and  the  people  of  Cuba.  I  was  particularly 
careful  to  impress  upon  them  that  Congress  might  in  its  wisdom  insist 
upon  different  conditions  or  relations,  but  that  the  proposition  submitted 
embodied  those  which  in  the  opinion  of  the  Executive  branch  of  the  Govern- 
ment should  exist  and  that  they  were  the  only  ones  which  they  could  at 
present  consider."  Maj.  Gen.  Wood  to  Secretary  of  War  Boot,  Feb.  19, 
1901.  Boot,  op.  tit.,  186. 

«I6td.,  215. 

*3Neely  v.  Eenlcel,  180  U.  8.,  109,  124  (1901). 

44  Boot,  op.  tit.,  238. 

45  ' '  The  sole  power  which  the  President  was  exercising  in  the  Philip- 
pine Islands  was  a  military  power  derived  from  his  authority  under  the 
Constitution  as  Commander-in-Chief  of  the  Army  and  Navy."  Ibid.,  252, 
295. 

*«  The  second  Philippine  Commission,  appointed  Mar.  16,  1900,  and  com- 
posed of  William  H.  Taft,  Dean  C.  Worcester,  Luke  E.  Wright,  Henry  C. 
Ide,  and  Bernard  Moses.  For  the  first  Commission,  see  supra,  157,  note 
21. 

47  Instructions  of  Apr.  7,  1900.  Boot,  op.  tit.,  287-294. 


261]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  261 

which  more  than  400  laws  were  enacted  "by  authority  of  the 
President  of  the  United  States"  and  subject  only  to  the  approval 
of  the  Secretary  of  War.48 

In  1901,  however,  the  President  was  given  express  authority 
by  Congress  to  govern  the  Philippines  temporarily,49  and  was 
thus  no  longer  forced  to  base  his  actions  on  his  "war  powers." 
Under  this  new  authority,  the  Philippine  Commission  was  con- 
tinued as  before,  but  the  military  and  civil  authority  in  the 
islands  were  still  further  separated,  the  military  governor  being 
relieved  of  all  his  civil  duties,  and  the  president  of  the  Commis- 
sion, Mr.  Taft,  being  appointed  civil  governor,  with  power  to 
exercise  the  executive  authority  in  civil  affairs  heretofore  exer- 
cised by  the  military  governor.50  The  organization  of  separate 
executive  departments  and  the  creation  of  the  office  of  vice-gov- 
ernor, were  further  steps  in  the  development  of  civil  govern- 
ment undertaken  by  the  President  by  virtue  of  his  general  pow- 
er as  Chief  Executive  and  the  authority  vested  in  him  by  Con- 
gress.51 

Finally,  the  last  insurgent  leaders  having  surrendered  in 
April,  1902,52  and  the  Philippine  Commission  created  by  the 
President  having  been  given  express  legislative  sanction  and  au- 
thority,53 the  President,  on  July  4,  1902,  terminated  altogether 
the  office  of  military  governor  in  the  Philippines,  made  the  mili- 
tary forces  subject  to  the  call  of  the  civil  authorities  "for  the 

48  Root,  op.  tit.,  294-295.  ' '  While  the  President  vested  and  could  vest  in 
it  no  greater  legislative  authority  than  the  military  commander  previously 
held,  it  has  exercised  that  authority  in  accordance  with  legislative  forms." 
Ibid.,  254. 

4»  By  the  so-called  Spooner  Amendment  to  the  Act  of  Mar.  2,  1901.  31 
Stat.  at  L.,  895,  910. 

50  See  order  of  June  21,  1901.  Root,  op.  cit.,  262.  Taft  was  inaugurat- 
ed civil  governor  on  July  4,  1901.  On  the  same  day  Maj.  Gen.  Chaffee 
succeeded  Maj.  Gen.  MacArthur  as  military  governor,  but  with  duties  ap- 
plying only  to  the  unpacified  regions  of  the  Philippines. 

si  Ibid.,  262-2S7.  Luke  E.  Wright  was  appointed  vice-governor,  the 
order  reading  ' '  by  virtue  of  the  authority  vested  in  me  as  President  of  the 
United  States. ' '  Ibid.,  264. 

52  Ibid.,  316-317. 

53  Philippine  Government  Act  of  July  1,  1902.  32  Stat.  at  L.,  691.  From 
this  time  the  laws  passed  by  the  Philippine  Commission  were  enacted  "by 
authority  of  the  United  States,"  instead  of  "by  authority  of  the  Presi- 
dent."   Root,  op.  tit.,  295. 


262  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [262 

maintenance  of  law  and  order  and  the  enforcement  of  their 
authority,"  M  and  thus,  in  the  words  of  Secretary  Root,  "a  com- 
plete system  of  civil  government,  built  up  under  the  authority 
of  the  President,  was  in  operation,  ready  to  go  on  under  the  au- 
thority of  Congress. ' ' 55 

In  other  matters,  also,  the  President  may  be  said  to  have  con- 
siderable power  with  regard  to  reconstruction  after  war.  Sever- 
al of  the  most  important  war  enactments  of  Congress,  conferring 
large  powers  upon  the  President  during  the  recent  war  with 
Germany  and  Austria-Hungary,  show  that  Congress  contemplat- 
ed a  period  of  reconstruction  during  which  the  President  might 
continue  to  exercise  those  war  powers  and  gradually  bring  about 
an  adjustment  to  the  normal  conditions  of  peace. 

Thus,  by  the  terms  of  the  Emergency  Shipping  Fund  Act  and 
of  the  Overman  Act,  the  President  was  expressly  authorized  to 
exercise  the  powers  therein  granted  for  a  period  of  six  months 
after  the  termination  of  the  war  by  the  proclamation  of  a  final 
treaty  of  peace;  while,  by  the  Railway  Control  Act,  he  was  em- 
powered to  continue  his  control  of  the  railroads  for  a  period  of 
one  year  and  nine  months  after  that  event.56  The  long  delay 
in  securing  the  final  termination  of  the  state  of  war  made  the 
armistice  period  virtually  a  period  of  reconstruction,  during 
which  President  Wilson  exercised  his  war  powers  as  he  deemed 
such  exercise  necessary  to  bring  about  the  readjustment  to  nor- 
mal conditions.  The  control  of  the  railroads  was  thus  continued 
until  March  1,  1920,  frankly  not  as  a  war  measure,  but  "  to 
render  an  adequate  and  convenient  transportation  service  at 
reasonable  cost. ' ' 57 

Similarly,  the  President  revived  and  exercised  his  war  powers 
under  the  Food  and  Fuel  Control  Act  at  various  times  during 
this  reconstruction  period.  Thus,  some  of  the  war-time  food  re- 
strictions, which  had  been  lifted  shortly  after  the  signing  of  the 
armistice,  were  revived  about  a  year  later,  and  the  powers  of  the 
Food  Administrator  transferred  by  executive  order  to  the  At- 

5*  Order  of  July  4,  1902.     Boot,  op.  cit.,  317-318. 

ss  Ibid.,  318. 

se  Acts  of  June  15,  1917;  Mar.  21,  1918  (Sec.  14);  May  20,  1918  (Sec. 
1).  Wigmore,  Source-Book  of  Military  Law  and  War-Time  Legislation,  484, 
583,  586. 

57  Statement  of  Director  General  Hines.     Supra,  216,  note  78. 


263]  POWERS  WITH  REGARD  TO  RECONSTRUCTION  263 

torney-General  in  an  attempt  to  avert  a  sugar  famine  and  lower 
the  high  cost  of  living.58  The  war-time  powers  of  the  Fuel  Ad- 
ministration were  likewise  revived  by  executive  order  of  October 
30,  1919,  and  exercised  to  meet  the  situation  caused  by  the  coal 
strike  of  that  time,  and  later  (December  10),  in  that  connection, 
virtually  transferred  to  a  wage  commission  of  three  men.59  By 
executive  order  of  February  28,  1920,  the  President  again  for- 
mally continued  the  Fuel  Administration,  "because  of  the  pres- 
ent emergency,  and  in  order  to  insure  an  adequate  supply  and 
equitable  distribution,  and  to  facilitate  the  movement,  and  to 
prevent  locally  or  generally,  scarcity  of  coal;"  and  vested  its 
powers  in  a  commission  of  four  men.60  Finally,  only  a  month 
later  (April  1),  President  Wilson  accepted  and  affirmed  the 
majority  report  of  the  commission  appointed  in  December  to  fix 
miner's  wages,  and  at  the  same  time  removed  all  governmental 
control  over  the  fuel  industry,  except  as  to  export  coal.61 

The  exercise  of  these  war  powers  by  President  Wilson  is  in 
every  instance  clearly  warranted  by  the  fact  of  the  continuance 
of  the  state  of  war.  However,  but  for  the  unusual  and  unex- 
pected delay  in  terminating  that  state  of  war,  these  same  prob- 
lems and  situations  would  have  arisen  during  a  time  of  technic- 
al as  well  as  virtual  peace,  and  they  seem  to  demonstrate  the 
necessity  for  an  extension  of  the  President's  war  powers  into 
the  period  of  reconstruction  and  readjustment,  in  order  to  meet 
effectively  just  such  problems  that  arise  out  of  war  conditions. 
Except  in  the  extraordinary  cases  mentioned,  where  the  courts 
have  held  that  necessity  and  the  failure  of  Congress  to  act  are 
a  sufficient  justification,  the  exercise  of  such  power  is  dependent 
upon  definite  statutory  authority.  The  grant  of  such  authority 
during  the  recent  war  is  likely  to  have  set  a  precedent  that  will 
be  followed  without  much  question  in  case  of  similar  emergencies 
in  the  future. 

ss  N.  T.  Times,  Nov.  22,  1919;  cf.  supra,  206-207. 

59  Supra,  207-208 ;    see  statement  of  the  former  Fuel  Administrator,  Dr. 
Garfield,  before  the  Senate  Committee  on  Interstate  Commerce,  Dec.   13, 
1919.     N.  ¥.  Times  Current  Hist.  Mag.,  XI,  Pt.  2,  30  (Jan.,  1920).  The 
commission  was  composed  of  Henry  M.  Eobinson,  John  P.  White,  and  Rem- 
brandt Peale. 

60  N.  Y.  Times,  Feb.  29,  1920.    This  commission  was  composed  of  A.  W. 
Howe,  Eembrandt  Peale,  F.  M.  Whittacker,  and  J.  F.  Fisher. 

61  See  announcement  in  United  States  Bulletin,  Mar.  29,  1920. 


264  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [264 

The  exercise  of  war  powers  during  a  period  of  reconstruction 
cannot  be  a  source  of  danger,  since  it  is  always  subject  to  a 
check  by  Congress.  In  no  case  can  it  be  said  that  the  President 
has  any  absolute  powers  with  regard  to  reconstruction  problems, 
as  he  has  with  regard  to  the  actual  conduct  of  the  war.  It  has 
been  noted  that  any  powers  in  this  respect  may  be  exercised  by 
the  President  only  because  of  the  failure  of  Congress  to  act,  or 
by  virtue  of  express  statutory  authority.  Hence,  Congress  may 
at  any  time  check  any  undue  exercise  of  Executive  power,  either 
by  taking  definite  action  itself  in  the  one  case  or  by  repealing  its 
grant  of  power  in  the  other. 


CHAPTER  XVI 

CONCLUSION 

j 

In  summing  up  the  results  of  this  study,  it  may  be  noted  again 
that  the  war  powers  of  the  President  are  derived  principally 
from  the  Constitution.  There  is  only  one  clause  in  that  instru- 
ment, however,  which  expressly  confers  upon  the  President  any 
power  relating  directly  to  war,  namely,  the  clause  which  makes 
him  Commander-in-Chief  of  the  army  and  navy  of  the  United 
States  and  of  the  militia  of  the  several  states  when  called  into 
the  actual  service  of  the  United  States.  Even  the  powers  of  the 
President  as  Commander-in-Chief  are  undefined  in  the  Consti- 
tution, and  hence  it  has  been  necessary  to  determine  them  more 
exactly  by  reference  to  international  law  and  practise,  to  the 
statutes  of  the  United  States,  to  custom  and  usage,  and  to  au- 
thoritative opinion. 

However,  the  Constitution  vests  in  the  President  other  pow- 
ers and  duties  which  do  not  necessarily  or  primarily  imply  the 
existence  of  war  for  their  exercise,  but  which  may  have  a  close 
relation  to  the  initiation  and  conduct  of  war,  and  must  therefore 
be  considered  in  this  discussion.  The  most  important  of  these 
are  the  powers  of  the  President  with  regard  to  foreign  relations 
and  the  powers  that  may  be  derived  from  his  position  as  the  Chief 
Executive  of  the  nation.  The  scope  of  these  powers  is  likewise 
undefined  in  the  Constitution,  and  must  again  be  determined 
through  necessary  implication  and  authoritative  interpretation. 
Other  powers  of  the  President  that  have  been  noted  as  bearing 
upon  the  conduct  of  war  are  his  powers  of  appointment  and  re- 
moval, his  power  of  pardon,  and  his  power  and  influence  with 
regard  to  legislation. 

Again,  other  clauses  of  the  Constitution,  while  not  expressly 
conferring  any  power  upon  the  President,  have  been  taken  into 
account  because  they  may,  by  necessary  implication,  add  to  his 

265 


266  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [266 

war  powers.  These  are  particularly  the  clauses  which  relate  to 
the  suspension  of  the  writ  of  habeas  corpus,  and  guarantee  to 
the  states  a  republican  form  of  government  and  protection  from 
invasion,  insurrection  and  domestic  violence.1  Those  clauses  of 
the  Constitution  which  confer  powers  relating  to  war  expressly 
upon  Congress  have  also  been  taken  into  consideration. 

From  our  study  of  these  express  powers,  as  interpreted  and 
applied  in  the  various  emergencies  that  have  arisen,  it  may  be 
said,  in  the  first  place,  that  the  President,  through  his  control  of 
foreign  relations,  his  power  as  Commander-in-Chief,  and  his  in- 
fluence and  authority  as  Chief  Executive,  may  virtually  compel 
or  prevent  a  war,  at  his  discretion.  He  may  very  largely  in- 
fluence a  declaration  of  war  by  Congress,  and  he  may  even  begin 
a  "defensive"  war  without  such  a  declaration. 

In  the  second  place,  it  is  the  President,  not  Congress,  who 
wages  war,  his  military  powers  as  Commander-in-Chief  making 
him  supreme  in  that  respect  and  solely  responsible  for  the  actual 
conduct  of  war.  His  constitutional  powers  in  this  regard  are 
customarily  supplemented  with  considerable  statutory  authority, 
so  that  he  has  large  powers  with  regard  to  raising  and  organiz- 
ing the  armed  forces ;  he  directs  and  controls  all  military  opera- 
tions ;  he  exercises  complete  powers  of  military  jurisdiction ;  and 
he  establishes  and  carries  on  military  government  —  in  fact, 
when  a  war  has  been  declared  or  begun,  the  President  may  do 
practically  anything,  in  a  military  sense,  that  he  deems  neces- 
sary to  carry  on  that  war  to  a  successful  conclusion,  subject  only 
to  the  rules  of  civilized  warfare. 

Thirdly,  the  civil  powers  of  the  President  are  greatly  increas- 
ed in  time  of  war  over  those  powers  in  time  of  peace.  Principally 
by  virtue  of  statutory  authority,  but  in  part  also  by  virtue  of 
his  express  constitutional  power  of  appointment,  and  his  im- 
plied powers  of  removal  and  direction,  together  with  his  author- 
ity as  Commander-in-Chief,  the  President,  during  such  a  period 
of  emergency,  is  vested  with  almost  complete  control  of  the  ad- 
ministrative machinery  of  the  government;  he  exercises  exten- 
sive powers  of  police  control  and  supervision  over  individual 
action  and  opinion;  and  he  may  even,  as  in  the  recent  World 
War,  practically  control  the  economic  resources  of  the  country. 

i  Cf.  Supra,  20,  notes  34-36. 


267]  CONCLUSION  267 

In  the  fourth  place,  the  President,  as  Commander-in-Chief, 
determines  when  and  upon  what  conditions  hostilities  are  to 
cease;  and,  since  a  treaty  of  peace  is  the  only  constitutional 
method  provided  for  terminating  a  war  on  the  part  of  the  Uni- 
ted States,  he  may  also,  by  virtue  of  his  treaty-making  powers, 
very  largely  determine  the  definitive  conditions  of  peace  and  the 
time  for  the  final  termination  of  the  state  of  war. 

Finally,  it  has  been  pointed  out  that  the  President  may,  in  the 
absence  of  congressional  action,  provide  for  and  carry  on  the 
government  of  territory  that  may  have  been  acquired  as  a  re- 
sult of  war,  and  in  other  ways  exercise  certain  of  his  war  powers 
during  the  period  of  reconstruction  following  war,  in  order  to 
meet  extraordinary  situations  that  may  arise  during  such  a 
period,  and  to  bring  about  a  gradual  readjustment  to  the  normal 
conditions  of  peace. 

At  least  one  definite  conclusion  can  be  drawn  from  this  study, 
namely,  that  the  so-called  "war  powers"  of  the  Executive  con- 
stitute no  isolated  group  of  powers  derived  from  a  single  source, 
but  that  they  are  intimately  connected  with  and  indeed  derived 
from  practically  every  phase  of  the  President's  authority.  In 
general,  the  war  powers  of  the  President  cannot  be  precisely 
defined,  but  must  remain  somewhat  vague  and  uncertain.  "The 
Constitution,"  says  President  Wilson,  "is  not  a  mere  lawyers' 
document:  it  is  a  vehicle  of  life,  and  its  spirit  is  always  the 
spirit  of  the  age. ' ' 2  That  statement  is  particularly  true  of  that 
portion  of  the  Constitution  dealing  with  the  war  powers.  The 
exigencies  and  circumstances  of  war  can  never  be  foreseen  or 
provided  against  in  advance,  to  any  appreciable  extent.  Hence, 
the  interpretation  of  what  may  actually  be  included  within  the 
war  powers  depends  very  largely  on  the  gravity  of  the  particu- 
lar occasion  for  their  exercise  and  the  peculiar  necessities  that 
arise  in  connection. 

Thus  it  was,  for  example,  that  the  power  to  arm  merchant 
ships  in  defense  was  first  asserted  by  President  Adams  as  the 
prerogative  of  the  Executive,  under  the  stress  of  the  troubles 
with  France  in  1798.  Likewise,  the  power  of  the  Executive  with 
regard  to  military  government  in  occupied  territory  was  firmly 
established  as  a  part  of  American  constitutional  law  by  Presi- 

2  Constitutional  Government  in  the  United  States,  69. 


268  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES          [268 

dent  Polk,  because  of  the  necessities  of  the  war  with  Mexico. 
Under  President  Lincoln  and  the  stress  of  civil  war  were  devel- 
oped especially  the  powers  of  censorship  and  arbitrary  arrest, 
and  of  military  government  over  territory  within  the  United 
States;  while  under  President  Wilson,  probably  the  control  ex- 
ercised by  the  Executive  over  the  administrative  machinery  of 
the  government  and  the  economic  resources  of  the  country  are 
the  outstanding  features  of  the  war  powers,  as  exercised  during 
the  recent  World  War. 

Clearly,  the  tendency  has  been  towards  a  great  increase  in  the 
war  powers  of  the  Executive  as  compared  with  those  of  Con- 
gress, a  tendency  quite  inevitable  when  one  considers  the  grow- 
ing complexity  of  war,  with  its  consequent  greater  need  for 
singleness  of  direction,  unity  of  command,  and  the  coordination 
of  every  resource  of  the  nation.  On  the  other  hand,  there  is  also 
a  tendency  to  pay  more  attention  to  constitutional  forms  in 
bringing  about  this  necessary  concentration  of  power,  rather 
than  to  rely  upon  an  arbitrary  exercise  of  power  when  the  oc- 
casion may  demand.  Thus,  while  President  Wilson  undoubtedly 
exercised  a  vastly  greater  power  during  the  recent  World  War 
than  did  President  Lincoln  during  the  Civil  War,  he  was  care- 
ful to  consult  with  Congress  almost  continuously  during  the  war, 
and  to  secure  express  authority  from  that  body  in  almost  every 
case  where  there  might  be  any  doubt  as  to  his  own  power  to  act 
without  such  authority;  while  President  Lincoln,  in  cases  of 
doubtful  authority  and  even  of  undoubted  lack  of  authority, 
such  as  increasing  the  regular  armed  forces,  suspending  the  writ 
of  habeas  corpus,  and  issuing  the  emancipation  proclamation, 
usually  acted  first  and  secured  the  sanction  of  law  afterwards, 
if  at  all. 

Altho,  as  has  been  noted,  many  of  the  President's  war  powers 
are  derived  from  express  statutory  grants  rather  than  directly 
from  the  Constitution,  and  are  therefore  subject  to  modification 
at  the  discretion  of  Congress,  it  may  safely  be  assumed  that  pow- 
ers thus  granted  will,  upon  occasion,  be  granted  again  with  more 
readiness,  the  necessity  for  such  exercise  of  power  having  been 
too  clearly  demonstrated  in  the  past.  It  is  probable,  for  example, 
that  Congress  would  not  hesitate,  in  case  of  a  future  war  of  sim- 
ilar importance,  to  vest  the  President  immediately  with  the 
powers  exercised  by  President  Wilson  under  the  Food  and  Fuel 


269]  CONCLUSION  269 

Control  Act,  the  Railway  Control  Act,  or  the  Trading  with  the 
Enemy  Act.  A  precedent  of  centralization  of  power  and  concen- 
tration of  effort  in  time  of  war  is  not  apt  to  be  ignored,  but,  on 
the  other  hand,  is  more  liable  to  be  accepted  as  a  principle  to  be 
followed  in  the  future,  if  occasion  arises.  It  may  be  noted  here 
that,  in  the  parliamentary  governments  of  Europe,  such  as  Great 
Britain,  where  the  direction  of  war  is  vested  in  a  Cabinet  of  sev- 
eral members  rather  than  in  a  single  Executive,  the  tendency,  as 
shown  especially  during  the  recent  World  War,  has  been  distinct- 
ly towards  a  concentration  of  the  war  powers  in  the  hands  of  a 
smaller  group,  approaching  singleness  of  control.  In  the  United 
States,  the  experiences  of  a  multiple  direction  of  war  through  the 
activities  of  the  Congress  during  the  Revolution  and  of  the  Joint 
Committee  during  the  Civil  War,  have  not  been  forgotten,  but 
were  sufficient  to  prevent  the  institution,  during  the  recent  war, 
of  any  similar  checks  on  single  Executive  authority. 

While  the  President,  in  critical  times,  thus  becomes  practically 
a  dictator,  that  does  not  necessarily  mean  a  disregard  of  the  prin- 
ciples of  constitutional  government  nor  require  further  limita- 
tions of  his  war  powers.  One  of  the  foremost  students  of  con- 
temporary American  politics  says  that  the  ability  to  act  prompt- 
ly and  energetically  in  the  presence  of  emergency  being  of  para- 
mount importance,  "no  government  can  survive  that  excludes 
dictatorship  when  the  life  of  the  nation  is  at  stake,"  and  he 
points  out  that  the  real  difference  between  a  despotism  and  con- 
stitutional government  lies  in  the  location  of  responsibility  rather 
than  in  the  limitation  of  power.8 

Certainly  the  tendency  in  the  United  States  has  been  to- 
wards the  concentration  of  the  war  powers  in  the  hands  of  the 
Executive.  More  and  more,  however,  has  that  been  done  by  ex- 
press legal  sanction;  and  more  and  more  is  the  responsibility 
for  anything  in  the  way  of  executive  action  being  definitely 
located  in  the  President,  so  that,  at  the  most,  the  President  may 
be  said  to  be  in  time  of  war,  a  ' '  constitutional  dictator. ' '  Even 
so,  the  authority  of  the  Executive  under  his  war  powers  is  so 
extensive  that  one  can  only  repeat  the  words  of  James  Bryce 
when  he  wrote  about  the  President  that  "when  foreign  affairs 

3H.  J.  Ford,  "The  Growth  of  Dictatorship,"  in  Atlantic  Monthly, 
CXXI,  632-640  (May,  1918),  esp.  634. 


270  WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES         [270 

become  critical,  or  when  disorders  within  the  Union  require  his 
intervention,  .  .  everything  may  depend  on  his  judgment, 
his  courage,  and  his  hearty  loyalty  to  the  principles  of  the  Con- 
stitution."4 


*  American  Commonwealth,  I,  67. 


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TABLE  OF  CASES  CITED 

PAGE 

Abrams  v.  United  States,  250  U.  S.,  616  (1919) 183 

Adula,  The,  176  U.  S.,  361  (1900) 125 

Angarica  v.  Bayard,  127  U.  S.,  251  (1888) 37 

Arver  v.  United  States,  245  U.  S.,  366  (1918) 105 

Baa  v.  Tingy,  4  Dall.,  37   (1800) 84 

Bishop  v.  United  States,  197  U.  S.,  334  (1905) 142 

Blake  v.  United  States,  103  U.  S.,  227  (1880) 128,  129 

Bollman,  Ex  parte,  4  Cranch,  75  (1807) 189 

Brown  v.  United  States,  8  Cranch,  110  (1814) 212 

Burke  v.  Miltenberger,  19  Wall.,  519  (1873) 164 

Coleman  v.  Tennessee,  97  U.  S.,  509  (1878) 155,  160 

Commercial  Cable  Company  v.  Burleson,  255  Fed.  Eep.,  99  (1919) 219 

Cross  v.  Harrison,  16  How.,  164   (1853) 157,  160,  257 

Dakota  Central  Telephone  Company  v.  South  Dakota,  250  U.  S.,  163 

(1919) .219 

Debs  v.  United  States,  249  U.  S.,  211  (1919) 193 

Dooley  v.  United  States,  182  U.  S.,  222  (1901) 153,  160,  162 

Dow  v.  Johnson,  100  U.  S.,  158  (1879) 153,  155,  163 

Fleming  v.  Page,  9  How.,  603   (1849) 126,  163,  224 

Floyd  Acceptances,  The,  7  Wall.,  666  (1868) 14 

Foster  v.  Neilson,  2  Pet,  253   (1829) 27,  31 

Frohwerk  v.  United  States,  249  U.  8.,  204  (1919) 193 

Garland,  Ex  parte,  4  Wall.,  333   (1866) 149 

Gelston  v.  Hoyt,  3  Wheat.,  246  (1818) 31 

German  Alliance  Insurance  Company  v.  Lewis,  233  U.  S.,  389  (1914) 203 

Grapeshot,  The,  9  Wall.,  129  (1869) 157,  164 

Gray  v.  United  States,  21  Ct.  of  Cl.,  340  (1886) 84 

Hamilton  v.  Dillin,  21  Wall.,  73  (1874) 209 

Hamilton  v.  Kentucky  Distilleries  &  Warehouse  Company,  251  U.  S.,  146 

(1919) 236 

Haver  v.  Taker,  9  Wall.,  32   (1869) 246 

Herrera  v.  United  States,  222  U.  S.,  558  (1912) 168 

Hornsby  v.  United  States,  10  Wall.,  224  (1869) 153 

Jecker  v.  Montgomery,  13  How.,  498   (1851) 164 

Johnson  v.  Sayre,  158  U.  S.,  109  (1895) 131 

Jones  v.  Seward,  40  Barb.  (N.  Y.),  563  (1863) 19 

Jones  v.  United  States,  137  U.  S.,  202  (1890) 25,  31 

Kansas  v.  Colorado,  206  U.  S.,  46  (1907) 13 

Kennett  v.  Chambers,  14  How.,  38  (1852) 31 

Lamar  v.  Browne,  92  U.  S.,  187   (1875) 248 

283 


284         WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES  [284 

PAGE 

Leitensdorfer  v.  Webb,  20  How.,  176  (1857) 157,  164,  257 

Luther  v.  Borden,  7  How.,  1  (1848) 132 

McCormick  v.  Humphrey,  27  Ind.,  144  (1866) 17 

Martin  v.  Mott,  12  Wheat.,  19  (1827) 132,  140 

Mechanics  and  Traders  Bank  v.  Union  Bank,  22  Wall.,  276  (1874). 

17,  152,  164 

Merryman,  Ex  parte,  Fed.  Cases  No.  9487  (1861) 192 

Miller  v.  United  States,  11  Wall.,  268  (1870) 17,  212 

Milligan,  Ex  parte,  4  Wall.,  2  (1868) 19,  117,  144,  146,  153,  182 

Mimmack  v.  United  States,  97  U.  8.,  426  (1888) 129 

Mississippi  v.  Johnson,  4  Wall.,  475  (1869) 117 

Neagle,  In  re,  135  U.  S.,  1  (1890) 14,  43,  50 

Neely  v.  Henkel,  180  U.  S.,  109  (1901) 154,  260 

New  Orleans  v.  Steamship  Company,  20  Wall.,  387  (1874) 153,  163 

Northern  Pacific  Eailway  Company  v.  North  Dakota,  250  U.  S.,  135 

(1919)  216 

Prize  Cases,  2  Black,  635  (1862) 60,  75,  76,  125,  209 

Protector,  The,  12  Wall.,  700  (1871) 247,  248 

Raymond  v.  Thomas,  91  U.  S.,  712  (1875) 160 

Rose  v.  Himely,  4  Cranch,  241  (1801) 31 

Runkle  v.  United  States,  122  U.  S.,  543  (1887) 142,  143 

Salamandra  Insurance  Company  v.  New  York  Life  Insurance  Company, 

254  Ted.  Rep.,  852  (1918) 212 

Schenck  v.  United  States,  249  U.  S.,  47  (1919) 193 

Shurtleff  v.  United  States,  189  U.  S.,  311  (1903) 128 

Siebold,  Ex  parte,  100  U.  S.,  371  (1879) 43 

Stata,  The,  56  Fed.  Rep.,  505  (1893) 32 

Stewart  v.  Kahn,  11  Wall.,  493  (1870) 17,  251 

Swaim  v.  United  States,  165  U.  S.,  553  (1897) 139 

Talbot  v.  Johnson,  3  Ball.,  133  (1795) 60 

Texas  v.  White,  7  Wall.,  700  (1868) 156,  251 

Totten  v.  United  States,  92  U.  S.,  105  (1875) 125 

Tucker  v.  Alexandroff,  183  U.  S.,  424  (1902) 40 

United  States  v.  Eliason,  16  Pet.,  291  (1842) 21,  112 

United  States  v.  Fletcher,  148  U.  S.,  84  (1893) 142 

United  States  v.  Guthrie,  17  How.,  283  (1854) 128 

United  States  v.  Hutchings,  2  Wheeler's  Crim.  Cases,  543 31 

United  States  v.  Klein,  13  Wall.,  128  (1871) 149,  150 

United  States  v.  Padelford,  9  Wall.,  531  (1869) 150 

United  States  v.  Page,  137  U.  S.,  673  (1891) 142 

United  States  v.  Trumbull,  48  Fed.  Rep.,  99  (1891) 32 

United  States  v.  Warfield,  170  Fed.  Rep.,  43  (1909) 21 

Vallandigham,  Ex  parte,  1  Wall.,  243  (1863) 144,  146,  147 

Watts  v.  United  States,  1  Wash.  Terr.,  288  (1870) 39 

Wilcox  v.  Jackson,  13  Pet,  498  (1839) 21 

Williams  v.  Suffolk  Insurance  Company,  13  Pet.,  415  (1839) 27,  31 


INDEX 


Adams,  John,  President,  arming  of 
merchant  vessels,  67,  81,  267; 
war  influence,  80-84;  on  power  to 
make  war,  86;  exercise  of  pardon, 
149;  purpose  of  Alien  Act,  187 

Adams,  John  Quincy,  on  nature  of 
war  powers,  15,  79;  peace  com- 
missioner, 238;  Secretary  of  State, 
defense  of  Jackson,  66 

Air  Service,  reorganization  of,  177- 
178 

Alabama  claims,  31,  89 

Alaska,  executive  agreement  con- 
cerning, 41;  government  of,  252 

Aldrich,  Nelson  W.,  Senator,  on 
senators  as  treaty  negotiators, 
242 

Alien  Act,  of  1789,  186-188 

Alien  Property  Custodian,  172,  212, 
213 

Aliens,  enemy,  control  of  in  war, 
184-186 

Allison,  W.  B.,  Senator,  on  senators 
as  treaty  negotiators,  242 

Amnesty,  proclamations  of,  149-150 

Ansell,  S.  T.,  Acting  Judge  Advo- 
cate General,  opinions  of,  129, 
143 

Arbitrary  arrest,  182,  191,  268 

Arbitration,  89,  90,  91,  92 

Armed  merchant  ships,  67-70,  81, 
198,  267 

Armed  neutrality,  70 

Armenia,  use  of  troops  in,  56 

Armistice,  nature  of,  232-236,  246; 
exercise  of  powers  after  signing 
of,  206,  207,  216,  218 

Army,  power  to  raise,  101;  founda- 
tion of,  102;  legionary  form  of 
organization,  111-112;  see  also 
Conscription,  National  army,  Eegu- 


lar  army,  Troops,  Voluntary  en- 
listment 

Articles  of  War,  138,  141 

Ashmun  resolution,  concerning  war 
with  Mexico,  74 

Attorney  General,  opinions  of,  on 
arming  of  merchant  vessels,  69 ;  on 
use  of  militia,  133,  134;  on  courts- 
martial,  139,  143;  on  military 
commissions,  144;  on  military 
government,  162;  on  suspension  of 
habeas  corpus,  190;  on  termina- 
tion of  war,  236;  powers  of  Food 
Administrator  transferred  to,  207, 
263 

Austria-Hungary,  war  with,  93,  95, 
185,  186,  226,  234,  248,  262 

Bacon,  A.  O.,  Senator,  on  power  to 
declare  war,  95-96;  on  nature  of 
executive  office,  115,  116;  on 
senators  as  treaty  negotiators, 
242 

Baker,  Newton  D.,  Secretary  of  War, 
use  of  troops  in  Silesia,  56;  con- 
scription, 108;  Siberian  exped- 
ition, 123,  125;  member  of  Com- 
mittee on  Public  Information, 
197 

Baldwin,  8.  E.,  on  Venezuela  affair, 
30;  on  declaration  of  war,  58,  80; 
on  termination  of  war,  224,  226, 
237 

Ballantine,  H.  W.,  on  civil  rights  in 
war,  182 

Banks,  N.  P.,  General,  military 
government  by,  154,  161 

Barbary  Powers,  hostilities  against, 
64 

Barrier  forts,  in  China,  attack  up- 
on, 51 


285 


286 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[286 


Baruch,  Bernard  M.,  chairman  of 
War  Industries  Board,  178,  211 

Bates,  Edward,  Attorney  General, 
opinions  of,  on  courts-martial, 
143;  on  suspension  of  habeas  cor- 
pus, 190 

Bayard,  James,  peace  commissioner, 
238,  240,  241 

Bayard,  Thomas  A.,  Secretary  of 
State,  executive  agreement  con- 
cerning fisheries  question,  41 

Bent,  Charles,  governor  of  New 
Mexico,  158,  161 

Benton,  Thomas  H.,  Senator,  on 
Panama  Congress,  27;  on  inchoate 
interest  in  Texas,  47 ;  on  war  with 
Mexico,  72;  on  government  of 
California,  254 

Bill  of  Bights,  182 

Birkhimer,  W.  E.,  on  beginning  of 
war,  60 

Blair,  Montgomery,  Postmaster  Gen- 
eral, on  censorship  in  war,  195, 
196 

Bliss,  Tasker  H.,  General,  126; 
peace  commissioner,  239 

Blockade,  74,  75,  125,  209,  234 

Borah,  William  E.,  Senator,  on  use 
of  troops  in  Siberia,  124 

Boxer  rebellion,  39,  52,  239 

Browning,  O.  H.,  Senator,  on  nature 
of  war  powers,  17 

Bryce,  James,  on  power  of  Presi- 
dent, 269 

Buchanan,  James,  Secretary  of 
State,  grievances  against  Mexico, 
87;  government  of  California, 
255;  President,  protection  of 
American  interests  abroad,  51 

Bulgaria,  relations  with,  93 

Bureau  of  Efficiency,  176 

Bureau  of  Standards,  180 

Cabinet,  War,  172,  177 

Cable  censorship,  200,  201 

Cable  control,  219 

Calhoun,  John  C.,  Secretary  of  War, 


responsible  for  Jackson's  occupa- 
tion of  Florida,  109;  Senator,  op- 
posed to  war  with  Mexico,  73 

California,  military  government  of, 
154,  155,  158,  159,  161,  254,  255, 
256,  257,  258 

Canada,  executive  agreement  con- 
cerning, 41;  Fenian  invasion  of, 
44,  89 

Caribbean,  zone  of,  police  control  in, 
53,  55,  56 

Cass,  Lewis,  Senator,  favored  war 
with  Mexico,  73-74;  Secretary  of 
State,  on  protection  of  American 
interests  abroad,  51 

Censorship,  171,  180,  194-202,  268 

Censorship  Board,  171,  201 

Chamberlain,  George  E.,  Senator, 
proposal  for  War  Cabinet,  172 

Chase,  Salmon  P.,  Secretary  of  the 
Treasury,  organization  of  armed 
forces,  112-113;  Chief -Justice, 
definition  of  military  government, 
153 

Chesapeake  affair,  84,  85 

China,  Boxer  rebellion,  39,  51-52; 
attack  upon  Barrier  forts,  51 

Civil  Service,  transfer  of  employees 
under,  177 

Civil  War,  blockade,  74-75,  209; 
raising  and  organization  of  armed 
forces,  104,  106,  110-111,  112-113; 
draft,  106,  167-168;  military  com- 
missions, 144,  147;  pardon,  150; 
congressional  check  on  conduct, 
170,  269;  suspension  of  habeas 
corpus,  189,  190-192;  censorship, 
195-197,  268;  regulation  of  inter- 
course, 208;  confiscation  of  prop- 
erty, 212;  control  of  railroads, 
214;  control  of  telegraph,  218, 
219;  termination,  248;  reconstruc- 
tion, 251 

Clay,  Henry,  recognition  of  South 
American  provinces,  33;  war  in- 
fluence, 85;  peace  commissioner, 
238,  240,  241 


287] 


INDEX 


287 


Clemency  Board,  during  World  War, 
150 

Cleveland,  Grover,  President,  Ven- 
ezuela affair,  30,  89-90;  power  of 
recognition,  32;  intervention  in 
Colombia,  53;  Cuban  policy,  91 

Coast  and  Geodetic  Survey,  transfer 
of,  177 

Coast  Guard,  transfer  of,  177 

Colombia,  relations  with,   49,  53 

Columbus  raid,  67 

Commander-in-Chief,  nature  of  pow- 
ers as,  11,  17,  19,  115,  116-117, 
265;  executive  agreements,  37,  40; 
military  measures  short  of  war, 
43;  defensive  war,  59,  60,  62,  75; 
personal  command,  115,  116,  118- 
120,  135-137 ;  direction  of  military 
and  naval  operations,  117,  121-126, 
266;  appointment  and  dismissal  of 
officers,  126-130;  control  of  mil- 
itia, 130-135;  military  jurisdic- 
tion, 139,  147;  military  govern- 
ment, 152,  153,  157,  164;  war  ad- 
ministration, 172,  174,  266;  po- 
lice control,  182,  186,  194,  200, 
201,  202;  control  of  economic  re- 
sources, 209;  termination  of  war, 
233,  267;  reconstruction,  251,  253, 
257,  260 

Committee  on  Public  Information, 
172,  197-199,  201 

Communication,  control  of,  231, 
218-219 

Confiscation  Ac&;  16,  150,  212 

Congress,  war  powers  of,  16,  17,  18, 
19,  58,  78,  79,  88,  95-96,  101,  117, 
118,  121,  126,  127,  131,  138,  142, 
149,  170,  183,  189,  191,  193,  208, 
224,  226-230,  248,  251,  252,  254, 
257,  264,  268 

Conscription,  in  the  Revolution,  105; 
in  Civil  War,  106,  167-168;  in 
World  War,  107-108,  169 

Constitution,  nature  of  executive,  leg- 
islative, and  judicial  clauses,  11; 
Wilson-Boosevelt  doctrine  of  con- 


struction, 12-14;  as  source  of  war 
powers,  20,  265-266;  as  war  in- 
strument, 182 

Convention  of  1787,  on  power  to  de- 
clare war,  61,  78-79;  on  powers  of 
command,  115,  119;  on  control  of 
militia,  130;  on  power  to  make 
peace,  228-229 

Corwin,  E.  S.,  on  control  of  foreign 
policy,  29,  31;  on  power  of  de- 
fense, 77;  on  power  to  declare 
peace,  226 

Council  of  National  Defense,  172, 
178,  204,  211,  215 

Courts-martial,  138-143,  147,  163, 
190 

Creel,  George,  chairman  of  Commit- 
tee on  Public  Information,  198, 
199 

Crowninshield,  B.  W.,  Secretary  of 
the  Navy,  38 

Cuba,  recognition  of,  32;  filibuster  - 
ering  expeditions  against,  45;  dif- 
ficulties concerning,  91-92;  mili- 
tary government  of,  156,  259- 
260 

Cullom,  S.  M.,  Senator,  on  senators 
as  treaty  negotiators,  241 

Cummins,  A.  B.,  Senator,  on  Over- 
man Act,  174;  on  railway  control, 
215,  216 

Dalmatia,  use  of  troops  in,  56,  57 

Daniels,  Josephus,  Secretary  of  the 
Navy,  member  of  Committee  on 
Public  Information,  197;  on  vol- 
untary censorship,  198 

Davis,  Cushman  K.,  Senator,  peace 
commissioner,  240 

Davis,  George  B.,  Judge  Advocate 
General,  opinion  of,  on  use  of 
militia,  134 

Day,  William  E.,  Secretary  of  State, 
peace  commissioner,  240 

Declaration  of  war,  46,  58-64,  71- 
76,  78-80,  82-98,  104,  226,  266 

Demobilization,  234,  235,  236 


288 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[288 


Denby,   Charles,  member'  of  Philip- 
pine Commission,  157 
Devens,  Charles,   Attorney   General, 

opinion  on  courts-martial,  139 
Dewey,  George,  Admiral,  member  of 

Philippine  Commission,  157 
Dick  Militia  Act,  133 
Dictatorship,    in   war,    18,    19,    203, 

269 
Diplomatic    relations,    breaking    of, 

35-37,  93 
Director  General  of  Eailroads,  172, 

180,  215,  216 
District  of  Columbia,  enemy  aliens 

barred  from,  186 
Draft,  in  Civil  War,  106,  167-168; 

see  also  Conscription 
Dunning,  W.  A.,  on  civil  rights  in 

war,  183 

Edge,  W.  E.,  Senator,  resolution  on 
use  of  troops  abroad,  124;  resolu- 
tion for  termination  of  war,  225 

Emancipation  proclamation,  268 

Embargo,  208,  210 

Emergency  Fleet  Corporation,  217 

Enemy  aliens,  control  of  in  war,  184- 
186 

Enlistment,  voluntary,  101,  104,  105 

Esch-Cummins  Railroad  bill,  216 

Espionage  Act,  150,  170,  193-194, 
201,  209 

Executive  agreements,  nature  of, 
37;  with,  Great  Britain,  37-39, 
41;  with  China,  39-40;  with  Mex- 
ico, 40;  with  Spain,  41;  with 
Panama,  41;  with  Japan,  41; 
with  Santo  Domingo,  42 

Executive  orders,  as  forms  of  presi- 
dential action,  20 

Executive  power,  nature  of  consti- 
tutional provision,  11;  Eoosevelt 
theory,  12-14;  extent  of,  14-15 

Exports  Administrative  Board,   171 

Exports  Council,  171 

Fairlie,   J.    A.,   on   nature    of   war 


powers,  20;  on  forms  of  presi- 
dential action,  20-21;  on  delega- 
tion of  powers,  21;  on  war  influ- 
ence of  President,  31 

Fall,  A.  B.,  Senator,  resolution  for 
withdrawal  of  recognition,  35; 
resolution  for  termination  of  war, 
225 

Federal  Trade  Commission,  trans- 
fer of  powers,  179 

Fenian  invasion,  44,  89 

Filibuster,  on  arming  of  merchant 
vessels,  69 

Filibustering  expeditions,  45 

Fillmore,  Millard,  President,  on  con- 
trol of  militia,  131;  powers  of 
reconstruction,  256 

Fish,  Hamilton,  Secretary  of  State, 
influence  for  peace,  89 

Fisheries  question,  executive  agree- 
ment concerning,  41 

Fletcher,  D.  IL,  Senator,  on  Over- 
man Act,  174 

Florida,  inchoate  interest  in,  45-46; 
occupation  of,  65,  66;  government 
of,  252 

Florida  claims,  89 

Food  control,  170,  171,  204-207,  210, 
262 

Food  and  Fuel  Control  Act,  170,  205, 
207,  208,  230,  262,  268 

Foraker,  Joseph  B.,  Senator,  on 
senators  as  treaty  negotiators,  242 

Ford,  H.  J.,  on  dictatorship  in  war, 
269 

Foreign  language  press,  control  of, 
201 

Foreign  policy,  formulation  of,  26-31 

Foreign  troops,  entry  of,  executive 
agreements  concerning,  40-41 

Fourteen  points,  234,  244 

France,  difficulties  with,  80,  83,  84, 
103 

France,  J.  I.,  Senator,  resolution  for 
pardon  of  political  prisoners,  151 

Freedom  of  speech  and  press,  182, 
183,  192-202 


289] 


INDEX 


289 


Frelinghuysen,   F.   T.,   Secretary   of 

State,    executive    agreements,    40, 

41 
Fremont,  John  C.,  Colonel,  military 

governor  of  California,  158,  255 
Frye,  William  P.,     Senator,     peace 

commissioner,  240 
Fuel  control,  170,  171,  179,  207-208, 

263 

Gallatin,  Albert,  on  war  influence  of 
President,  82;  peace  commissioner, 
238 

Garfield,  H.  A.,  Fuel  Administrator, 
207,  208,  263 

Garner,  J.  W.,  on  executive  power 
in  war,  15 

Gerard,  James  W.,  Ambassador,  re- 
call of,  37 

Germany,  war  with,  declaration  of, 
92,  95,  226;  raising  of  forces  dur- 
ing, 105,  107-108 ;  control  of  aliens 
during,  185,  186;  armistice  con- 
ditions, 234;  reconstruction  after, 
262;  termination  of,  225,  226, 
230-231,  235-236,  248 

Goodnow,  F.  J.,  on  nature  of  war 
powers,  13,  19,  167 

Grain  Corporation,  United  States, 
171,  206 

Grant,  U.  S.,  President,  inchoate  in- 
terest in  Santo  Domingo,  48;  in- 
fluence for  peace,  88-89 

Graves,  William  S.,  Major  General, 
commander  of  Siberian  expedition, 
122,  123 

Gray,  George,  Senator,  peace  com- 
missioner, 240 

Great  Britain,  executive  agreements 
with,  37-39,  41;  relations  with, 
62-63,  84-86,  88-90;  see  also  War 
of  1812 

Great  Lakes,  limitation  of  naval 
armaments  on,  37 

Gregory,  Thomas  W.,  Attorney  Gen- 
eral, opinion  on  arming  of  mer- 
chant vessels,  69 


Greytown  (Nicaragua),  bombard- 
ment of,  50 

Griggs,  John  W.,  Attorney  General, 
opinions  of,  on  military  govern- 
ment, 162;  on  termination  of  war, 
236 

Habeas  corpus,  suspension  of,  188- 
192,  266,  268 

Hague  Convention,  61,  94,  95,  96 

Hale,  Eugene,  Senator,  on  senators 
as  treaty  negotiators,  241,  242 

Hamilton,  Alexander,  on  power  to 
receive  and  send  diplomatic  rep- 
resentatives, 35;  on  neutrality, 
44;  on  power  of  defense,  63-64; 
on  power  of  declaring  war,  78, 
94;  on  powers  of  command,  116, 
119;  on  power  of  pardon,  148;  on 
executive  war  power,  167 

Hand,  Learned,  Judge,  on  power  to 
terminate  war,  236 

Harding,  Warren  G.,  Senator,  on 
dictatorship  in  war,  18 

Harrison,  Benjamin,  President,  on 
appointment  of  officers,  127 

Hartford  Convention,  132 

Hawaii,  government  of,  253 

Hayti,  intervention  in,  54 

Helvidius  letter,  on  neutrality,  44 

Henry  correspondence,  85,  86 

Henry,  Patrick,  on  dictatorship  in 
war,  18 

Hines,  Walker  D.,  Director  General 
of  Eailroads,  216,  262 

Hitchcock,  C.  N.,  on  control  of  in- 
dustry in  war,  211,  212 

Hitchcock,  Gilbert  M.,  Senator,  on 
use  of  troops  in  Dalmatia,  57 

Hoar,  George  F.,  Senator,  on  ap- 
pointment of  senators  as  treaty 
negotiators,  241,  242 

Holmes,  O.  W.,  Justice,  dissenting 
opinion  on  civil  rights  in  war,  183 

Honduras,  intervention  in,  55 

Hoover,  Herbert,  Food  Administra- 
tor, 204,  205 


290 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[290 


Horseshoe  Eeef,  executive  agreement 
concerning,  38 

House,  Edward  M.,  peace  commis- 
sioner, 239 

Housing  Corporation,  213 

Hughes,  Charles  E.,  on  direction  of 
military  movements,  121;  on  con- 
trol of  business  in  war,  204,  219; 
on  power  to  make  peace,  229;  on 
powers  of  reconstruction,  250 

Ide,  Henry  C.,  member  of  Philip- 
pine Commission,  260 

Inchoate  interest,  in  Florida,  45-46; 
in  Texas,  47-48;  in  Santo  Domin- 
go, 48-49;  in  Panama  Canal,  49 

Industry,  control  of,  204,  210-212 

International  law,  as  limitation  on 
war  powers,  15,  17;  as  source  of 
war  powers,  20;  control  of  enemy 
aliens,  184,  185;  treatment  of 
enemy  property,  212;  right  of 
requisition,  217 

Internment,  during  World  War,  185, 
186 

Interstate  Commerce  Commission, 
215 

Intervention,  53-57 

Jackson,  Andrew,  General,  occupa- 
tion of  Florida,  65,  66,  67;  raising 
of  troops  in  Seminole  War,  108- 
109;  President,  recognition  of 
Texas,  33 

Jefferson,  Thomas,  on  arming  of 
merchant  vessels,  67;  on  war  in- 
fluence of  Adams,  80,  81;  on  sus- 
pension of  habeas  corpus,  189; 
Secretary  of  State,  formulation  of 
foreign  policy,  26;  President, 
power  of  defense,  63,  64-65;  in- 
fluence for  peace,  84-85 

Johnson,  Andrew,  military  governor, 
153,  158;  President,  limitation  on 
removal  power,  128;  convenes  mil- 
itary commission,  145;  exercise  of 


pardon,  150;  powers  of  reconstruc- 
tion, 251 

Johnson,  Hiram,  Senator,  on  Siber- 
ian policy,  124 

Judge  Advocate  General,  opinions 
of,  129,  134,  143 

Judicial  power,  constitutional  limi- 
tation on,  11 

Kearney,  S.  W.,  General,  military 
government  by,  154,  155,  157,  158, 
161,  163 

Knox,  P.  C.,  Senator,  on  nature  of 
war  powers,  16;  on  Overman  Act, 
175;  peace  resolution,  225,  226, 
230;  resolution  for  separation  of 
covenant  and  treaty,  244 

Koszta  incident,  50 

Lansing,  Robert,  Secretary  of  State, 
on  arming  of  merchant  vessels, 
69;  member  of  Committee  on  Pub- 
lic Information,  197;  peace  com- 
missioner, 239 

Lansing-Ishii  agreement,  41 

League  of  Nations,  224,  225,  244, 
245 

Legion,  as  form  of  army  organiza- 
tion, 111-112 

Legislative  power,  constitutional 
limitation  on,  11 

Lenroot,  I.  L.,  Senator,  on  termina- 
tion of  war,  224 

Lighthouse  Service,  transfer  of,  177 

Lincoln,  Abraham,  President,  on  na- 
ture of  war  powers,  16;  exercise 
of  arbitrary  power,  18,  268;  pow- 
er of  recognition,  32;  blockade, 
74,  125,  209 ;  draft,  106 ;  question- 
able authority,  110,  175;  powers 
of  command,  120;  trial  of  assas- 
sins of,  144,  145;  exercise  of  par- 
don, 150;  military  government, 
158,  161,  163;  suspension  of 
habeas  corpus,  190,  192;  regula- 
tion of  intercourse,  209;  control 


291] 


IXDEX 


291 


of  railroads,  214;  powers  of  re- 
construction, 251 

Lodge,  H.  C.,  Senator,  on  Fall  reso- 
lution, 36;  resolution  for  termina- 
tion of  war,  225,  227;  control  of 
negotiations,  245,  246 

Louisiana,  government  of,  252 

McAdoo,  W.  G.,  Director  General  of 
Eailroads,  172,  215,  216 

McCallum,  D.  C.,  military  director 
of  railroads,  214 

McComas,  J.  B.,  Senator,  on  sena- 
tors as  treaty  negotiators,  242 

McCormick,  Medill,  Senator,  resolu- 
tion on  use  of  troops  abroad,  124 

McKinley,  William,  President,  or- 
ders military  force  to  China,  51; 
war  influence,  91-92;  direction  of 
military  operations,  120;  block- 
ade, 125,  209;  military  govern- 
ment, 154,  156,  157,  159,  258-262; 
preliminary  protocol,  234;  ap- 
pointment of  peace  commissioners, 
239,  240;  control  of  peace  nego- 
tiations, 243 

Madison,  James,  on  neutrality,  44; 
on  arming  of  merchant  vessels,  68 ; 
on  war  influence  of  Adams,  81, 
83;  on  power  of  declaring  war, 
94;  President,  war  influence,  85; 
proclamation  of  war,  97;  use  of 
militia  in  war,  132;  exercise  of 
pardon,  150;  proposal  for  armis- 
tice, 233;  appointment  of  peace 
commissioners,  238 

Maine  controversy,  91 

March,  Peyton  C.,  General,  114,  126 

Marcy,  W.  L.,  Secretary  of  War, 
Koszta  incident,  50;  military  gov- 
ernment of  New  Mexico,  159,  255 

Marine  Hospital  Service,  177 

Marines,  use  of  in  Caribbean  Zone, 
55 

Marshall,  John,  on  control  of  for- 
eign relations,  25 


Martial  law,  138,  143,  145,  146,  152 

Mason,  William  E.,  Eepresentative, 
peace  resolution,  225 

Mayes,  James  J.,  Acting  Judge  Ad- 
vocate General,  opinions  of,  129 

Merchantmen,  armed,  67-70,  81,  198, 
267 

Mexico,  Wilson's  relations  with,  30, 
35-36,  52,  67;  war  with,  as  war 
of  defense,  70-74;  beginning  of, 
86-88;  declaration  of,  88,  95,  226; 
raising  of  forces  during,  103;  ap- 
pointment of  officers  in,  126;  use 
of  militia  in,  132,  133;  blockade, 
209;  termination  of,  247 

Military  commissions,  138,  143-147, 
163,  190 

Military  governor,  155,  158,  159 

Militia,  61,  107,  130-137 

Mines,  Bureau  of,  179,  180 

Monroe,  James,  Secretary  of  State, 
armistice  proposal,  233;  Secretary 
of  War,  recommends  conscription, 
106;  on  control  of  militia,  132, 
136,  137;  President,  power  of  rec- 
ognition, 33;  inchoate  interest  in 
Florida,  46;  power  of  defense, 
65;  appointment  of  officers,  127; 
on  appointment  of  members  of 
Congress  to  foreign  missions,  240 

Monroe  doctrine,  30,  31,  54,  90 

Moore,  John  Bassett,  on  executive 
agreements,  37 

Morgan,  E.  M.,  on  courts-martial, 
142 

Morgan,  John  T.,  Senator,  on  sena- 
tors as  treaty  negotiators,  241 

Moses,  Bernard,  member  of  Philip- 
pine Commission,  260 

Murray,  William  Vans,  on  arming 
of  merchant  vessels,  68 

National  Army,  106,  113 

National  Defense  Act,  105,  107,  113, 

132,  210 
National  Guard,  107,  113 


292 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[292 


Navy,  power  to  provide,  101;  see 
also  Secretary  of  the  Navy 

Negotiations,  control  of,  25,  31,  242- 
246 

Nelson,  Knute,  Senator,  on  Over- 
man Act,  175 

Neutrality,  enforcement  of,  44-45, 
70,  88 

New  Mexico,  military  government 
of,  154,  157,  158,  159,  161,  163, 
254,  255,  257 

Newspapers,  control  of  in  war,  196, 
198-199,  201-202 

Nicaragua,  bombardment  of  Grey- 
town,  50;  intervention  in,  55 

Official  Bulletin,  198 
Oregon  question,  86 
Otis,  E.  S.,  Major  General,  member 

of  Philippine  Commission,  Io7 
Overman  Act,  173-181,  231,  262 

Pacificus  letter,  on  neutrality,  44 
Palmer,  A.  Mitchell,  Alien  Property 

Custodian,  213;  Attorney  General, 

opinion    on   power     to    terminate 

war,  236 

Panama,  relations  with,  41,  49,  51,  53 
Panama  Canal  Zone,  180,  186,  253 
Panama  Congress,  27-30 
Pardon,  power  of,  141,  148-151 
Peace,  power  of  Congress  to  declare, 

224-231 
Peace    commissioners,    appointment 

of,  237-239;  senators  as,  240-242 
Peace  negotiations,  control  of,  237, 

242-246 

Peace  resolutions,  225,  226,  227,  230 
Peace  treaty,  223-225,  228-231 
Pershing,  John  J.,  General,  126,  127 
Phelps,   John   S.,   military   governor 

of  Arkansas,  158 
Philippine   Commission,      156,      157, 

260,  261 
Philippines,  government  of,  154,  156, 

159,  160,  260-262;  acquisition  of, 

234,  243 


Pierce,  Franklin,  President,  defends 
bombardment  of  Greytown,  50 

Platt,  O.  H.,  Senator,  on  senators  as 
treaty  negotiators,  242 

Platt  Amendment,  259 

Poindexter,  Miles,  Senator,  on  ter- 
mination of  war,  224,  226 

Police  supervision,   53-57 

Polk,  James  K.,  President,  enforce- 
ment of  neutrality,  45;  inchoate 
interest  in  Texas,  47-48;  war  in- 
fluence, 70-72,  86-88;  proclama- 
tion of  war,  97;  direction  of  mili- 
tary operations,  120,  126;  exer- 
cise of  pardon,  149;  military  gov- 
ernment, 154,  157,  160,  268; 
blockade,  209;  appointment  of 
peace  commissioners,  238-239;  con- 
sultation with  Senate,  "244;  pow- 
ers of  reconstruction,  254-256 

Pomeroy,  J.  N.,  on  use  of  militia, 
134 

Porter  resolution,  for  termination  of 
war,  226 

Porto  Eico,  government  of,  156, 
159,  258;  acquisition  of,  234 

Posse  comitatus,  use  of  army  as,  43 

Postmaster  General,  control  of  wire 
services,  180,  219;  censorship  by, 
195,  196,  201-202 

Preliminary  protocol,  232,  234,  236 

President,  source  of  war  powers,  20 ; 
see  also  names  of  Presidents,  and 
passim 

Press,  control  of  in  war,  182,  192-202 

Price  control,  179,  203,  204,  205, 
206,  207,  210 

Proclamations,  as  forms  of  presi- 
denial  action,  20;  of  state  of  war, 
97-98;  of  amnesty,  149-150;  fix- 
ing registration  days,  168;  an- 
nouncing enemy  alien  regulations, 
185-186 ;  suspending  habeas  cor- 
pus, 190;  establishing  food  and 
fuel  regulations,  205-206,  207;  an- 
nouncing termination  of  war,  247- 
248 


293] 


INDEX 


293 


Prohibition,  206,  236 

Property,  control  of,  182,  203,  212- 

214 

Protocol,  preliminary,  232,  234,  236 
Provost  Marshal  General,  168,  170, 

180 

Public  Health  Service,  177,  180 
Punitive  expeditions,  65-67 

Eadio  control,  218-219 

Eailroads,  control  of,  172,  208,  214- 
217,  262 

Eailroads  War  Board,  214 

Railway  Control  Act,  171,  215,  231, 
262,  269 

Ratification,  power  of,  246-248 

Rayner,  Isador,  Senator,  theory  of 
executive  power,  13 

Recognition,   power   of,     31-34,     35 

Reed,  James  A.,  Senator,  opposes 
Overman  Act,  174 

Registration,  under  Selective  Service 
Act,  168 

Regular  Army,  105,  113,  122 

Reid,  Whitelaw,  peace  commissioner, 
240 

Reprieves,  power  of  granting,  148 

Requisition,  power  to,  203,  204,  206, 
210,  211,  217,  218 

Revolutionary  War,  dictatorship  in, 
18,  203;  conscription  in,  105; 
direction  of,  269 

Rockhill,  W.  W.,  special  commission- 
er to  China,  40,  239 

Roosevelt,  Theodore,  President,  the- 
ory of  executive  power,  12-13;  re- 
lations with  Santo  Domingo,  41- 
42,  49,  54;  intervention  in  Pana- 
ma, 49;  command  in  war  with 
Germany,  105,  130 

Root,  Elihu,  on  nature  of  war  pow- 
ers, 16,  250;  Secretary  of  War, 
259,  260 

Root-Takahira  agreement,  41 

Rush,  Richard,  Acting  Secretary  of 
State,  38 

Russell,    Jonathan,    charge    d'    af- 


faires,   233;    peace    commissioner, 
238 

Russia,  recognition  of  Omsk  govern- 
ment, 32;  use  of  troops  in,  123 

Sanford,  Edward  S.,  military  super- 
visor of  telegraphic  messages,  196 

San  Juan  (Nicaragua),  city  of, 
bombardment  of,  50 

San  Juan,  island  of,  executive  agree- 
ment concerning,  39 

Santo  Domingo,  executive  agree- 
ment with,  42;  inchoate  interest 
in,  48;  intervention  in,  54,  56 

Schouler,  James,  on  power  to  make 
peace,  230,  237 

Schurman,  Jacob  G.,  member  of 
Philippine  Commission,  157 

Schurz,  Carl,  Senator,  on  inchoate 
interest  in  Santo  Domingo,  48 

Scott,  W.  S.,  General,  126,  143,  190 

Secretary  of  Agriculture,  171,  210 

Secretary  of  Commerce,  171,  176, 
210 

Secretary  of  the  Interior,  180 

Secretary  of  Labor,  180,  213 

Secretary  of  the  Navy,  38,  56,  142, 
176,  180,  197,  198,  200,  201 

Secretary  of  State,  12,  40,  41,  48, 
51,  66,  69,  87,  89,  171,  191,  195, 
196,  197,  198,  210,  234,  239,  240, 
255 

Secretary  of  the  Treasury,  112,  113, 
172,  180,  209,  210,  215,  238,  253 

Secretary  of  War,  41,  56,  62,  108, 
109,  123,  125,  132,  142,  156,  159, 
180,  191,  197,  198,  200,  201,  253, 
255,  259,  260,  261 

Sedition  Act,  of  1798,  187,  188,  193, 
194 

Selective  Service  Act,  105,  107,  113, 
126,  127,  129,  168,  169 

Seminole  War,  of  1818,  65-66,  108, 
132,  133 

Senate,  on  power  of  recognition,  32, 
34;  power  regarding  executive 
agreements,  37 ;  treaty -making 


294 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[294 


power,  47,  228-230,  231,  232,  244- 
246;  filibuster  in,  69;  power  re- 
garding appointment  and  remov- 
al of  officers,  126-129;  on  fuel  or- 
der, 207;  confirmation  of  peace 
commissioners,  237-239;  on  sena- 
tors as  treaty  negotiators,  240- 
242 

Sequestration,  212 
Seward,  W.  H.,  Secretary  of  State, 

censorship  by,  195 

Shepley,  George  F.,  military  gover- 
nor of  Louisiana,  158,  161 
Sherman,  L.  Y.,  Senator,  resolution 

on  use  of  troops  abroad,  57 
Shields,  John  K.,  Senator,  on  War 

Cabinet,  173 

Shipping,  control  of,  217-218 
Shipping  Board,  171,  172,  180,  210, 

217 

Siberian  expedition,  123,  124,  125 
Signal  Corps,  reorganization  of,  177- 

178 

Silesia,  use  of  troops  in,  56 
Smith,  Hoke,  Senator,  opposes  Over- 
man Act,  174 

South,  blockade  of,  74,  125,  209; 
military  government  of,  154,  155, 
157,  158,  161,  162,  163-164;  recon- 
struction of,  251 

Spain,  war  with,  beginning  of,  91- 
92;  declaration  of,  95,  98,  104, 
226;  organization  of  forces  in, 
113;  blockade,  125,  209;  use  of 
militia  in,  134,  peace  negotiations, 
234,  243;  termination  of,  248; 
acquisition  of  territories,  258 
Speed,  James,  Attorney  General, 
opinion  on  military  commissions, 
144 

Spooner,  John  C.,  Senator,  on  con- 
duct of  foreign  relations,  25,  245, 
247;  on  powers  of  command,  117 
Sprigg    resolution,    negative    declar- 
ation of  war,  83 

Stager,  Anson,  military  superintend- 
ent of  telegraphs,  218 


Standards,  Bureau  of,  180 

Stanly,  Edward,  military  governor 
of  North  Carolina,  158 

Stanton,  Edwin  M.,  Secretary  of 
War,  on  military  occupation  of 
South,  156 

State,  department  of,  peculiar  stat- 
us of,  25;  see  also  Secretary  of 
State 

Sterling,  Thomas,  Senator,  on  pow- 
er to  make  peace,  230 

Stockton,  Commodore,  military  gov- 
ernor of  California,  154,  158,  161 

Stone,  William  J.,  Senator,  on  arm- 
ing of  merchant  vessels,  69 

Story,  Joseph,  Justice,  on  power  of 
recognition,  34;  on  power  to  make 
peace,  229 

Sumner,  Charles,  Senator,  on  nature 
of  war  powers,  15,  16,  17-18;  on 
inchoate  interest  in  Santo  Domin- 
go, 48;  hostility  towards  Great 
Britain,  89 

Supreme  Court,  on  executive  power, 
13;  on  nature  of  war  powers,  16- 
17,  19;  on  power  to  begin  war, 
60;  on  wars  of  conquest,  223;  on 
power  to  terminate  war,  236;  see 
also  Table  of  Cases 

Taft,  W.  H.,  theory  of  executive 
power,  14;  on  formulation  of  for- 
eign policy,  26;  on  power  to  make 
peace,  230;  Secretary  of  War,  ex- 
ecutive agreement  with  Panama, 
41;  member  of  Philippine  Com- 
mission, 260;  governor  of  Philip- 
pines, 261;  President,  intervention 
in  Caribbean  Zone,  55 

Taney,  Eoger  B.,  Chief -Justice,  dis- 
sent in  Prize  Cases,  75;  on  sus- 
pension of  habeas  corpus,  192 

Taylor,  Hannis,  on  use  of  troops 
abroad,  122 

Taylor,  Zachary,  General,  48,  70,  71, 
87,  126;  President,  powers  of  re- 
construction, 256 


295] 


INDEX 


295 


Telegraph  and  telephone,  control  of, 
180,  185,  196,  200,  214,  218-219 

Teller,  Henry  M.,  Senator,  on  sena- 
tors as  treaty  negotiators,  242 

Termination  of  war,  223-231,  232, 
235-236,  247-248 

Texas,  annexation  of,  31,  47;  rec- 
ognition of,  33;  inchoate  interest 
in,  47-48 

Thayer,  H.  E.,  censor  in  Civil  War, 
195 

Tillman,  B.  E.,  Senator,  on  senators 
as  treaty  negotiators,  241 

Trade,  control  of,  208-210 

Trading  with  the  Enemy  Act,  171, 
172,  200,  201,  209,  210,  212,  230, 
269 

Transportation,   control   of,   214-218 

Trau  incident,  56 

Treaty  of  peace,  as  method  of  ter- 
minating war,  223-224,  228-229, 
231,. 232;  negotiation  of,  237,  242- 
246 

Tripoli,  war  with,   63 

Trist,  Nicholas,  peace  commissioner, 
238,  239 

Troops,  reciprocal  passage  of,  40-41; 
use  of  in  aid  of  civil  power,  43- 
44;  see  also  Army 

Turkey,  diplomatic  relations  with, 
36,  93 

Tyler,  John,  President,  inchoate  in- 
terest in  Texas,  47,  48 

Upshur,  A.  P.,  Secretary  of  State, 
on  executive  power,  12 

Van   Buren,   Martin,     Senator,     on 

Panama  Congress,  28,  39 
Venezuela  affair,  30,  89-90 
Vera  Cruz,  occupation  of,  52 
Versailles,  treaty  of,  246 
Virginius  incident,  30,  41 
Voluntary  enlistment,  101-105 

Wadsworth,  James,  Senator,  on  con- 
trol of  administration,  172 


Wage  commission,  263 
War,  articles  of,  138,  141;  declara- 
ation  of,  46,  58-64,  71-76,  78-80, 
82-98,  104,  226,  266;  notification 
of,  96-97;  termination  of,  223- 
231,  232,  235-236,  247-248;  see 
also  Austria-Hungary,  Civil  War, 
Germany,  Mexico,  ^Revolutionary 
War,  Seminole  War,  Spain,  Trip- 
oli, and  passim 

War  of  1812,  beginning  of,  85-86; 
declaration  of,  95,  226;  militia  in, 
132,  133,  136;  control  of  commerce 
during,    208;    armistice    proposal, 
233;  termination  of,  247 
War  Cabinet,  172-173,  177 
War  Industries  Board,  172,  178,  179, 

210,  211-212 

War  Eisk  Insurance  Bureau,  172,  176 
War  Trade  Board,  171,  179,  201,  210 
Washington,  George,  General,  as  dic- 
tator, 18,  203;  President,  power  of 
defense,    62;    army    organization, 
111;  exercise  of  personal  command 
120,  135;  exercise  of  pardon,  143; 
Lieutenant  General,  103 
Whiskey  Eebellion,  135,  149 
White,   Henry,   peace   commissioner, 

239 
Whiting,  W.,  on  defensive  war,  59; 

on  civil  rights  in  war,  183 
Wickersham,    George    W.,    Attorney 
General,  opinion  on  use  of  militia, 
133,  134 ;  on  power  to  make  peace, 
230 

Willard,  Daniel,  direction  of  rail- 
road operation,  215 
Willoughby,  W.  W.,  on  executive 
power,  14;  on  declaration  in  civil 
war,  76;  on  powers  of  reconstruc- 
tion, 251 

Wilson,  Woodrow,  on  executive  pow- 
er, 12;  on  formulation  of  foreign 
policy/.  26;  President,  relations 
with  Mexico,  30,  35,  52,  67;  severs 
relations  with  Germany,  36;  arm- 
ing of  merchant  vessels,  68,  69, 


296 


WAR  POWERS  OF  THE  EXECUTIVE  IN  UNITED  STATES 


[296 


70;  war  influence,  92-93;  procla- 
mation of  war,  97;  conscription, 
105,  108,  169;  direction  of  military 
operations,  120,  123,  125;  refusal 
to  appoint  Roosevelt  to  command, 
130;  court-martial  procedure,  141, 
142;  exercise  of  pardon,  151;  con- 
trol of  war  administration,  170, 
171,  177,  178,  268;  opposes  War 
Cabinet,  173;  exercise  of  ques- 
tionable authority,  175;  control 
of  aliens,  185-186 ;  censorship,  197, 
200,  201;  control  of  economic  re- 
sources, 203,  204,  205,  209,  210, 
211,  212,  213,  215,  216,  217,  219; 
termination  of  war,  226,  230,  236 ; 
armistice,  234 ;  demobilization, 
235;  peace  negotiations,  239,  240, 
242,  243,  244,  246;  powers  of  re- 
construction, 208,  262,  268 


Wilson-Roosevelt  doctrine,  12-13 

Wood,  Leonard,  Major  General,  43, 
130,  159,  259 

Woolsey,  T.  S.,  on  breaking  of  dip- 
lomatic relations,  36;  on  declara- 
tion of  war,  58 

Worcester,  Dean  C.,  member  of  Phil- 
ippine Commission,  157,  260 

World  War,  administrative  author- 
ity of  President  in,  170;  censor- 
ship during,  197,  202,  necessity 
for  economic  control,  203,  204; 
war  powers  in,  268,  269;  see  also 
Austria-Hungary,  Germany 

Wright,  Luke  E.,  member  of  Phil- 
ippine Commission,  260;  vice- 
governor,  261 

X  Y  Z  correspondence,  81,  82 


UNIVERSITY  OF  ILLINOIS  URBANA 


30112084204400 


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^*W*kPI« 


